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AUTHENTICATED 
US. GOVERNMENT 
INFORMATION ^ 


OPERATION FAST AND FURIOUS: MANAGEMENT 
FAILURES AT THE DEPARTMENT OF JUSTICE 


HEARING 

BEFORE THE 

COMMITTEE ON OA^RSIGHT 
AND GOA^RNMENT REFORM 

HOUSE OF REPRESENTATDH]S 

ONE HUNDRED TWELETH CONGRESS 

SECOND SESSION 

FEBRUARY 2, 2012 

Serial No. 112-103 


Printed for the use of the Committee on Oversight and Government Reform 



Available via the World Wide Web: http://www.fdsys.gov 
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 


DAN BURTON, Indiana 


DARRELL E. ISSA, California, Chairman 

ELIJAH E. CUMMINGS, Maryland, Ranking 
Minority Member 


JOHN L. MICA, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

MICHAEL R. TURNER, Ohio 

PATRICK T. McHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

CONNIE MACK, Florida 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

ANN MARIE BUERKLE, New York 

PAUL A. GOSAR, Arizona 

RAUL R. LABRADOR, Idaho 

PATRICK MEEHAN, Pennsylvania 

SCOTT DesJARLAIS, Tennessee 

JOE WALSH, Illinois 

TREY GOWDY, South Carolina 

DENNIS A. ROSS, Florida 

FRANK C. GUINTA, New Hampshire 

BLAKE FARENTHOLD, Texas 

MIKE KELLY, Pennsylvania 


EDOLPHUS TOWNS, New York 
CAROLYN B. MALONEY, New York 
ELEANOR HOLMES NORTON, District of 
Columbia 

DENNIS J. KUCINICH, Ohio 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MIKE QUIGLEY, Illinois 

DANNY K. DAVIS, Illinois 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

CHRISTOPHER S. MURPHY, Connecticut 

JACKIE SPEIER, California 


Lawrence J. Brady, Staff Director 
John D. Cuaderes, Deputy Staff Director 
Robert Borden, General Counsel 
Linda A. Good, Chief Clerk 
David Rapallo, Minority Staff Director 


(II) 



CONTENTS 


Page 

Hearing held on February 2, 2012 1 

Statement of: 

Holder, Eric H., Jr., Attorney General of the United States 124 

Letters, statements, etc., submitted for the record by: 

Burton, Hon. Dan, a Representative in Congress from the State of Indi- 
ana, prepared statement of 213 

Cummings, Hon. Elijah E., a Representative in Congress from the State 

of Maryland, letter dated January 30, 2012 5 

Gosar, Hon. Paul A., a Representative in Congress from the State of 

Arizona, prepared statement of 214 

Holder, Eric H., Jr., Attorney General of the United States, prepared 

statement of 128 

Issa, Hon. Darrell E., a Representative in Congress from the State of 
California: 

Discovery documents 187, 191, 195 

Memo dated February 1, 2012 102 

Speier, Hon. Jackie, a Representative in Congress from the State of 
California, memo dated November 16, 2007 183 


(III) 




OPERATION FAST AND FURIOUS: MANAGE- 
MENT FAILURES AT THE DEPARTMENT OF 
JUSTICE 


THURSDAY, FEBRUARY 2, 2012 

House of Representatives, 
Committee on Oversight and Government Reform, 

Washington, DC. 

The committee met, pursuant to notice, at 9:13 a.m., in room 
2154, Rayburn House Office Building, Hon. Darrell E. Issa (chair- 
man of the committee) presiding. 

Present: Representatives Issa, Burton, Platts, McHenry, Jordan, 
Chaffetz, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, 
Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, Farenthold, 
Kelly, Cummings, Towns, Maloney, Norton, Kucinich, Tierney, 
Clay, Lynch, Cooper, Connolly, Quigley, Davis, Welch, Yarmuth, 
Murphy, and Speier. 

Staff present: Ali Ahmad, communications advisor; Michael R. 
Bebeau, assistant clerk; Robert Borden, general counsel; Molly 
Boyl, parliamentarian; Lawrence J. Brady, staff director; Sharon 
Casey, senior assistant clerk; Steve Castor, chief counsel, investiga- 
tions; John Cuaderes, deputy staff director; Carlton Davis, Jessica 
L. Donlon, and Mitchell S. Kominsky, counsels; Kate Dunbar, legis- 
lative assistant; Adam P. Fromm, director of Member services and 
committee operations; Linda Good, chief clerk; Christopher Hixon, 
deputy chief counsel, oversight; Henry J. Kerner, senior counsel for 
investigations; Justin LoFranco, deputy director of digital strate^; 
Mark D. Marin, director of oversight; Ashok M. Pinto, deputy chief 
counsel, investigations; Laura L. Rush, deputy chief clerk; Rebecca 
Watkins, press secretary; Jeff Wease, deputy CIO; Beverly Britton 
Fraser, Peter Kenny, and Carlos Uriarte, minority counsels; Kevin 
Corbin, minority deputy clerk; Ashley Etienne, minority director of 
communications; Susanne Sachsman Grooms, minority chief coun- 
sel; Devon Hill, minority staff assistant; Jennifer Hoffman, minor- 
ity press secretary; Carla Hultberg, minority chief clerk; Adam 
Koshkin, minority staff assistant; Lucinda Lessley, minority policy 
director; Scott Lindsay, minority senior counsel; and Dave Rapallo, 
minority staff director. 

Chairman IsSA. The committee will come to order. 

The Oversight Committee’s mission statement is that we exist to 
secure two fundamental principles: First, Americans have a right 
to know that the money Washington takes from them is well spent; 
and, second, Americans deserve an efficient, effective government 
that works for them. 


( 1 ) 



2 


Our duty on the Oversight and Government Reform Committee 
is to protect these rights. Our solemn responsibility is to hold gov- 
ernment accountable to taxpayers, because taxpayers have a right 
to know what they get from their government. Our job is to work 
tirelessly in partnership with citizen watchdogs to deliver the facts 
to the American people and bring genuine reform to the bureauc- 
racy. 

I will now recognize myself for an opening statement. 

Today, we are joined by the Attorney General of the United 
States over a matter that this committee has invested more than 
a year in research. 

In November 2009, Fast and Furious opens. 

In December 2009, DEA meets with the ATF and gives them info 
on Fast and Furious targets, info that could have well ended the 
operation. 

On January 6, 2010, Fast and Furious becomes, in fact, a joint 
exercise. 

On March 15, 2010, the first Federal wiretaps are issued in this 
case. 

On December 15, 2010, December 15, 2010, Brian Terry is mur- 
dered with weapons found at the scene that came from Fast and 
Furious. 

On January 27th, Senator Grassley first asked the Department 
of Justice about Fast and Furious; and within days we are given 
a false statement of facts, denying that guns were ever allowed to 
walk. Within days of that, we began to know that Fast and Furious 
was going to be difficult. 

That was more or less Groundhog Day a year ago. Today is 
Groundhog Day again. This committee has lost its patience to wait 
longer. We will not wait until next Groundhog Day to get answers 
for the American people, for Brian Terry, and for others. 

On March 3, 2011, John Dodson goes public. Agent Dodson is 
here today. He, too, deserves to have this nightmare of uncertainty, 
of having a temporary assignment, of not being allowed to do the 
job for which he has dedicated his career put behind him. 

On October 11th, after months and months and months of this 
committee trying to get further voluntary cooperation, we issued 
subpoenas for documents. To date, we have been told two things. 
First of all, they are difficult and time-consuming to give us, and 
yet 10 times as many documents were provided to the Inspector 
General. More than three times as many people have been able to 
be interviewed by the Attorney — I’m sorry, by the IG, the Inspector 
General — sorry, Mr. Attorney General — ^by your Inspector General. 
During that period of time, whistleblowers have consistently 
brought us additional information. That information allows us to 
glean more than most of the documents we have received through 
discovery. 

The minority can say what they want and issue the opinions they 
want, the memos they want. They have been absent from this, and 
I am disappointed for that. This is a legitimate requirement of this 
committee to get to the bottom of it and to get genuine change so 
this cannot happen again — and I repeat — the genuine change, the 
safeguards, the protections that were not there apparently before 
so this cannot happen again. 



3 


Mr. Attorney General, as we go through questioning, my question 
will be when is the primary investigative committee of Congress, 
of the U.S. House, going to be allowed to have the same access that 
your own essentially self-appointed Inspector General has? 

The IG, if you will, the 12,000 people of the Inspector General’s 
Office throughout the government are important, and we expect 
them to be respected, and we expect them to receive information. 
But the 70 men and women that work for the majority and the 30 
or so that work for the minority are a very small fraction of that. 

We ask very little of government by comparison to what the in- 
ternal controls historically and always will ask for. Our budget is 
less than l/20th of what the Inspector General’s Office is. We are 
not an agency that can ask for vast amounts of documents. We 
have asked you for documents, and if you look at the totality of 
government, we have asked for very little compared to the IG’s of- 
fices. 

We believe — and I think the ranking member will join me in 
this — that we deserve those answers in at least as timely a fashion 
as your own IG gets. It is our opinion that we haven’t gotten that, 
that the need for overmanaging and redacting and careful looking 
by teams of lawyers have gotten in the way of the legitimate speed 
with which we should get that. 

We are going to ask you many things today. Hopefully, you came 
prepared to know a great deal about Fast and Furious. The impor- 
tant things that I am going to ask today are: What can you do to 
bring this to a close? What can you do before the IG completes her 
investigation to allow the American people to see change that tells 
them this is no longer going on and it won’t go on in the future? 

Last, before I recognize the ranking member, it is this majority 
at least committee’s belief that this is an operation that included 
reckless behavior at ATF; failure to push harder and inform more 
by DEA and the FBI; a U.S. attorney who clearly didn’t do his job 
in a way that anyone should be proud of We now have a Justice 
Department official who has taken the Fifth. We have moved up 
a ways, and all of those people should be ashamed that Brian Terry 
is dead because they didn’t do as good a job as they should. Ken- 
neth Melson has said that publicly and privately, that he bears a 
great deal of that blame. 

The point here today is we want to know how Justice will over- 
see every local operation, every State, eveiy one of the various 
agencies that are either under your authority or in a joint task 
force become under your authority, how you will ensure for the 
American people that this will not happen again, or at least the 
systems are in place to give us the confidence that it is much more 
unlikely to happen. 

Those are the items that I come here today, asked you to come 
here today for, and I appreciate your being here voluntarily to an- 
swer. It is the committee’s responsibility to ask. I hope we will get 
the answers and the commitments today that we ask for. 

I recognize the ranking member for his opening statement. 

Mr. Cummings. Thank you very much, Mr. Chairman, and I 
want to welcome the Attorney General today. 

Mr. Chairman, when the committee started this investigation al- 
most a year ago, you and I made pledges to the family of Agent 



4 


Brian Terry to find out what led to the release of hundreds of fire- 
arms to criminal networks on both sides of the border. We pledged 
to follow the facts wherever they may lead and provide the public 
with answers. 

Mr. Chairman, I want to acknowledge your efforts here. Over the 
past year, we devoted incredible amounts of time, money, and en- 
ergy to investigating this issue. We interviewed 22 witnesses, in- 
cluding senior officials at the Department of Justice and ATF. We 
also reviewed thousands of pages of documents, and we held four 
full committee hearings on this very topic. 

Because of our extensive work, we have had concrete results. The 
committee has exposed a 5-year — 5-year pattern of gun-walking op- 
erations run by the Phoenix division of ATF and the Arizona U.S. 
Attorney’s Office. More importantly, we have put a stop to it. This 
is a significant accomplishment, and I commend you for it. 

In addition, we can now explain to the public how this series of 
reckless operations originated and evolved over the past 5 years. I 
ask unanimous consent to place into the record a report I sent to 
Members earlier this week. 

Chairman IssA. Without objection, so ordered. 

Mr. Cummings. Thank you, Mr. Chairman. 

[The information referred to follows:] 



5 


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January 30, 2012 

Dear Members of the Committee on Oversight and Government Reform; 

On December 15, 2010, Brian Terry, an Agent in an elite Customs and Border Protection 
tactical unit, was killed in a gunfight 18 miles from the Mexican border. Two AK-47 variant 
assault rifles found at the scene were traced back to purchases by one of the targets of an 
investigation called Operation Fast and Furious being conducted by the Bureau of Alcohol, 
Tobacco, Firearms and Explosives (ATF), When he purchased these weapons, the target had 
already been identified as a suspected straw purchaser involved with a large network of firearms 
traffickers illegally .smuggling guns to deadly Mexican drug cartels. Despite knowing about 
hundreds of similar purchases over a year-long period, ATF interdicted only a small number of 
firearms and delayed making arrests. 

Last June, I pledged to Agent Terr)''s family that 1 would try to find out what led to this 
operation that allowed hundreds of firearms to be released into communities on both sides of the 
border. Following the Committee's year-long investigation of this matter, I directed my staff to 
compile this report to provide some of those answers. 1 instructed them to focus on the facts we 
have discovered rather than the heated and sometimes inaccurate rhetoric that has characterized 
much of this investigation. 

As a result, this report tolls the story of how misguided gunwalking operations originated 
in 2006 as ATF's Phoenix Field Division devised a strategy to forgo prosecutions against low- 
level straw purchasers while they attempted to build bigger charges against higher-level cartel 
members. Unfortunately, this strategy failed to include sufficient operational controls to stop 
these dangerous weapons from getting into the hands of violent criminals, creating a danger to 
public safety on both sides of the border. 

The report describes how, rather than halting this operation after its flaws became evident, 
ATF's Phoenix Field Division launched several similarly reckless operations over the course of 
several years, also with tragic results. Operation Fast and Furious was the fourth in a series of 
operations in which gunwalking— the non-interdiction of illegally purchased firearms that could 
and should be seized by law enforcement— occurred since 2006. 

This report also details complaints by ATF line agents and senior officials in Washington, 
who told the Committee that these failures were aggravated and compounded by the Arizona 






U.S. Attorney's Office, which failed to aggressively prosecute firearms trafficking cases, and 
Federal courts in Arizona, which showed leniency toward the trafficking networks that fuel armed 
violence in Mexico. 

This report debunks many unsubstantiated conspiracy theories. Contrary to repeated 
claims by some, the Committee has obtained no evidence that Operation Fast and Furious was 
a politically-motivated operation conceived and directed by high-level Obama Administration 
political appointees at the Department of Justice. The documents obtained and interviews 
conducted by the Committee indicate that it was the latest in a series of reckless and fatally 
flawed operations run by ATF's Phoenix Field Division during both the previous and current 
administrations. 

Although this report provides a great amount of detail about what we have learned to date, 
it has several shortcomings. Despite requests from me and others, the Committee never held a 
hearing or even conducted an interview with former Attorney General Michael Mukascy. The 
Committee obtained documents indicating that in 2007 he was personally informed about the 
failure of previous law enforcement operations involving the illegal smuggling of weapons into 
Mexico, and that he received a proposal to expand these operations. Since the Committee failed to 
speak with Mr. Mukasey, we do not have the benefit of his input about why these operations were 
allowed to continue after he was given this information. 

The Committee also rejected my request to hold a public hearing with Kenneth Melson, the 
former Acting Director of ATF, the agency primarily responsible for these operations. Although 
Committee staff conducted an interview' with Mr. Melson, the public has not had an opportunity 
to hear his explanations for why these operations continued for so many years without adequate 
oversight from ATF headquarters. 

As its title indicates, the Committee on Oversight and Government Reform has two 
primary missions. Not only are we charged with conducting oversight of programs to root out 
waste, fraud, and abuse, but we are also responsible for reforming these programs to ensure that 
government works more effectively and efficiently for the American people. For these reasons, 
this report sets forth constructive recommendations intended to address specific problems 
identified during the course of this investigation. 

Above all, in offering this report and these recommendations, I recognize and commend the 
contributions of hundreds of thousands of law enforcement agents across our government who 
risk their lives on a daily basis in the pursuit of public safety and in defense of this nation. 


Sincerely. 



7 

CONTENTS 


I. EXECUTIVE SUMMARY i 

II. METHODOLOGY 7 

III. BACKGROUND lo 

IV FINDINGS 15 

A. ATE Phoenix Field Operations Involving 

"Gunwalking" 15 

1. Operation Wide Receiver (2006-07) 15 

ATF-Phoenix monitored gun dealer selling to straw buyers 16 

ATF-Phoenix sought U.S. Attorney's approval to walk guns 17 

ATF-Phoenix continued to walk guns after consulting with U.S. Attorney 19 

ATF agents unsuccessfully attempted to coordinate with Mexico 20 

ATF agents expressed concern about gunwalking 22 

Criminal Division took over prosecution and found gunwalking 23 

2. The Hernandez Case (2007) 24 

ATF-Phoenix watched guns cross border without interdiction 24 

ATF headquarters raised concerns about operational safeguards 25 

Attorney General Mukasey briefed and asked to "expand" operations 26 

3. The Medrano Case (2008) 29 

ATF agents watched as firearms crossed the border 29 

ICE agents raised concerns 30 

Criminal complaint also confirms "gunwalking" 31 

4. Operation Fast and Furious (2009-10) 32 

Initiated by ATF-Phoenix in the Fall of 2009 ..33 

Prosecutors claimed no probable cause lo arrest straw buyers 34 

Prosecutor encouraged U.S. Attorney to "hold out for bigger" case 36 

ATF-Phoenix sought funding and wiretaps to target higher-level suspects 38 

ATF-Phoenix agents watched guns walk 39 

ATF Deputy Director Hoover ordered an "exit strategy" 40 

ATF-Phoenix did not follow the 90-day exit strategy and continued the operation 41 

Indictments delayed for months 43 




8 


B. Challenges Specific to the Arizona U.S. Attorney's 

Office 45 

"Viewed as an obstacle more than a help" - 45 

Evidentiary thresholds in Arizona 46 

C. No Evidence that Senior Officials Authorized or 

Condoned Gunwalking in Fast and Furious 49 

Attorney General Holder 49 

Deputy Attorney General Grindler.... .....52 

Acting ATF Director Melson 53 

ATF Deputy Director Hoover 55 

United States Attorney Burke 56 

Criminal Division review of Fast and Furious wiretap applications 58 

Criminal Division response to Wide Receiver 60 

Criminal Division interactions with Mexican Officials 63 

D. Department Responses to Gunwalking in Operation 

Fast and Furious 65 

Inaccurate information initially provided to Congress 65 

Request for IG investigation and reiteration of Department policy .68 

Personnel actions 69 

Agency reforms 70 

V. RECOMMENDATIONS 71 



9 


1. EXECUTIVE SUMMARY 


On December 15, 2010, Customs and Border Protection Agent Brian Terry 
was killed in a gunfight in Arizona, and two AK-47 variant assault rifles found at 
the scene were traced back to purchases by one of the targets of an investigation 
called Operation Fast and Furious being conducted by the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives (ATF). The target already had been identified as 
a suspected straw purchaser involved with a large network of firearms traffickers 
smuggling guns to deadly Mexican drug cartels. 

At the request of the Committee's Ranking Member, Rep. Elijah E. Cummings, 
this report describes the results of the Committee's year-long investigation into the 
actions and circumstances that led to this operation. 

The report finds that gunwalking operations originated as early as 2006 
as agents in the Phoenix Field Division of ATF devised a strategy to forgo arrests 
against low-level straw' purchasers while they attempted to build bigger cases 
against higher-level trafficking organizers and financiers. Rather than halting 
operations after flaws became evident, they launched several similarly reckless 
operations over the course of several years, also with tragic results. Each 
investigation involved various incarnations of the same activity: agents were 
contemporaneously aware of illegal firearms purchases, they did not typically 
interdict weapons or arrest straw purchasers, and firearms ended up in the hands of 
criminals on both sides of the border. 

Operation Wide Receiver (2006-2007) 

In 2006, ATF agents in Phoenix initiated Operation Wide Receiver with 
the cooperatioir of a local gun dealer. For months, ATF agents watched in real- 
time as traffickers purchased guns and drove them across the border into Mexico. 
According to William Newell, the Special Agent in Charge of the Phoenix Field 
Division, these suspects told the gun dealer that the "firearms are going to his boss 
in Tijuana, Mexico where some are given out as gifts." Although ATF officials 
believed they had sufficient evidence to arrest and charge these suspects, they 
instead continued surveillance to identify additional charges. As one agent said at 
the time, "we want it all." 

Paul Charlton, then the U.S. Attorney in Phoenix, was informed that 
firearms were "currently being released into the community," and he was asked 
for his position on allowing an "indeterminate number" of additional firearms to 
be "released into the community, and possibly into Mexico, without any further 


- 1 - 




10 


ability by the U.S. Government to control their movement or future use," As his 
subordinate stated, "[tjhis is obviously a call that needs to be made by you Paul." 

Over the next year, ATF agents in Phoenix went forward with plans to 
observe or facilitate hundreds of suspected straw firearm purchases. In 2007, a year 
after the investigation began, ATF initiated attempts to coordinate with Mexican 
officials. After numerous attempts at cross-border interdiction failed, however, the 
lead ATF case agent for Operation Wide Receiver concluded: "We have reached that 
stage where I am no longer comfortable allowing additional firearms to 'walk'." 

In late 2007, the operational phase of Operation Wide Receiver was 
terminated, and the case sat idle for two years. When a Justice Department 
prosecutor reviewed the file in 2009, she quickly recognized that "a lot of guns seem 
to have gone to Mexico" and "a lot of those guns 'walked'." The defendants were 
indicted in 2010 after trafficking more than 450 firearms. 

The Hernandez Case (2007) 

ATF agents in Phoenix attempted a second operation in 2007 after identifying 
Fidel Hernandez and several alleged co-conspirators who "purchased over two 
hundred firearms" and were "believed to be transporting them into Mexico." 

After being informed of several failed attempts at coordinating with Mexican 
authorities, William Hoover, then ATF's Assistant Director of Field Operations, 
temporarily halted operations, writing: 

I do not want any firearms to go South until further notice. I expect 
a full briefing paper on my desk Tuesday morning from SAC Newell 
with every question answered. I will not allow this case to go forward 
until we have written documentation from the U.S. Attorney's Office 
re full and complete buy in. I do not want anyone briefed on this case 
until I approve the information. This includes anyone in Mexico. 

In response. Special Agent in Charge Newell wrote to another ATF official, 
"Tm so frustrated with this whole mess I'm shutting the case down and any further 
attempts to do something similar." Nevertheless, ATF operational plans show that 
additional controlled deliveries were planned for October and November of that 
year. 


In the midst of these operations. Attorney General Michael Mukasey received 
a briefing paper on November 16, 2007, in preparation for a meeting with the 
Mexican Attorney General. It stated that "ATF would like to expand the possibility 
of such joint investigations and controlled deliveries— since only then will it be 
possible to investigate an entire smuggling network, rather than arresting simply a 


- 2 - 



11 


single smuggler." The briefing paper also warned, however, that "the first attempts 
at this controlled delivery have not been successful." Ten days later, ATF agents 
planned another operation in coordination with Mexico, again without success. 

Hernandez and his co-conspirators, who had purchased more than 200 
firearms, were arrested in Nogales, Arizona on November 27, 2007, while attempting 
to cross the border into Mexico. They were brought to trial in 2009, but acquitted 
after prosecutors were unable to obtain the cooperation of the Mexican law 
enforcement officials who had recovered the firearms. 

The Medrano Case (2008) 

In 2008, ATF agents in Phoenix began investigating a straw purchasing 
network led by Alejandro Medrano. Throughout 2008, ATF agents were aware that 
Medrano and his associates were making illegal firearms purchases from the same 
gun dealer who cooperated with ATF in Operation Wide Receiver. 

An ATF Operational Plan describes an instance on June 17, 2008, in which 
agents watched Medrano and an associate illegally purchase firearms and load 
them into a car bound for Mexico. According to the document, "Agents observed 
both subjects place the firearms in the backseat and trunk," and then "surveilled the 
vehicle to Douglas, AZ where it crossed into Mexico." 

Agents from U.S. Immigration and Customs Enforcement (ICE) balked 
when they learned about these tactics. After an interagency planning meeting in 
August 2008, the head of ICE's Arizona office wrote to ATF Special Agent in Charge 
Newell that, although ICE agents "left that meeting with the understanding that 
any weapons that were followed to the border would be seized," ATF agents later 
informed them that "weapons would be allowed to go into Mexico for further 
surveillance by LEAs [law enforcement agents] there." 

On December 10, 2008, Federal prosecutors filed a criminal complaint 
that appears to confirm that ATF agents watched as Medrano and his associates 
smuggled firearms into Mexico. Describing the incident on June 17, 2008, for 
example, the complaint asserts that the suspects "both entered into Mexico with at 
least the six (6) .223 caliber rifles in the vehicle." Medrano and his associates were 
sentenced to multi-year prison terms after trafficking more than 100 firearms to a 
Mexican drug cartel. 

Operation Fast and Furious (2009-2010) 

In Operation Fast and Furious, ATF agents in Phoenix utilized gunwalking 
tactics that were similar to previous operations. In October 2009, ATF agents had 


- 3 - 



12 


identified a sizable network of straw purchasers they believed were trafficking 
military-grade assault weapons to Mexican drug cartels. By December, they had 
identified more than 20 suspected straw purchasers who "had purchased in excess 
of 650 firearms." 

Despite this evidence, the ATF agents and the lead prosecutor in the case 
believ'ed they did not have probable cause to arrest any of the straw purchasers. As 
the lead prosecutor wrote: "We have reviewed the available evidence thus far and 
agree that we do not have any chargeable offenses against any of the players." 

In January 2010, ATF agents and the U.S. Attorney's Office agreed on a 
strategy to build a bigger case and to forgo taking down individual members of the 
straw purchaser network. The lead prosecutor presented this broader approach in 
a memo that was sent to U.S. Attorney Dennis Burke. The memo noted that "there 
may be pressure from ATF headquarters to immediately contact identifiable straw 
purchasers just to see if this develops any indictable cases and to stem the flow of 
guns." In the absence of probable cause, however, the U.S. Attorney agreed that 
they should "[hjold out for bigger." Over the next six months, agents tried to build a 
bigger case with wiretaps while making no arrests and few interdictions. 

After receiving a briefing on Operation Fast and Furious in March 2010, ATF 
Deputy Director William Hoover became concerned about the number of firearms 
involved in the case. Although he told Committee staff that he was not aware of 
gunwalking, he ordered an "exit strategy" to take down the case and ready it for 
indictment within 90 days. ATF field agents chafed against this directive, however, 
and continued to facilitate suspect purchases for months in an effort to salvage the 
broader goal of the investigation. The case was not indicted until January 2011, ten 
months after Deputy Director Hoover directed that it be shut down. 

No evidence that senior officials authorized gunwalking in Fast and 

Furious 

The documents obtained and interviews conducted by the Committee reflect 
that Operation Fast and Furious was the latest in a series of fatally flawed operations 
run by ATF agents in Phoenix and the Arizona U.S. Attorney's Office. Far from a 
strategy that was directed and planned by the "highest levels" of the Department 
of Justice, as some have alleged, the Committee has obtained no evidence that 
Operation Fast and Furious was conceived or directed by high-level political 
appointees at Department of Justice headquarters. 

ATF's former Acting Director, Kenneth Melson, and ATF's Deputy Director, 
William Hoover, told Committee staff that gunwalking violated agency doctrine, 
that they did not approve it, and that they were not aware that ATF agents in 
Phoenix were using the tactic in Operation Fast and Furious. They also stated that, 


- 4 - 



13 


because they did not know about the use of gunwalking in Operation Fast and 
Furious, they never raised it up the chain of command to senior Justice Department 
officials. 

Apart from whether Mr. Hoover was aware of specific gun walking allegations 
in Operation Fast and Furious, it remains unclear why he failed to inform Acting 
ATF Director Melson or senior Justice Department officials about his more general 
concerns about Operation Fast and Furious or his March 2010 directive for an "exit 
strategy." During his interview with Committee staff, Mr. Hoover took substantial 
personal responsibility for ATF's actions, stating: "1 have to take responsibility for 
the mistakes that we made." 

Former Phoenix U.S. Attorney Dennis Burke told Committee staff that 
although he received multiple briefings on Operation Fast and Furious, he did not 
approve gunwalking, was not aware it was being used, and did not inform officials 
in Washington about its use. Fie told Committee staff that, at the time he approved 
the proposal for a broader strategy targeting cartel leaders instead of straw 
purchasers, he had been informed that there was no probable cause to make any 
arrests and that he had been under the impression that ATF agents were working 
closely with Mexican officials to interdict weapons. Given the number of weapons 
involved in the operation, Mr. Burke stated that he "should have spent more time" 
focusing on the case. He stated: "it should not have been done the way it was done, 
and I want to take responsibility for that." 

Gary Grindler, the former Acting Deputy Attorney General, and Lanny 
Breuer, the Assistant Attorney General for the Criminal Division, both stated that 
neither ATF nor the U.S. Attorney's Office ever brought to their attention concerns 
about gunwalking in Operation Fast and Furious, and that, if they had been toid, 
they "would have stopped it." 

When allegations of gunwalking three years earlier in Operation Wide 
Receiver were brought to the attention of Mr. Breuer in 2010, he immediately 
directed his deputy to share their concerns directly with ATF's leadership. He 
testified, however, that he regretted not raising these concerns directly with the 
Attorney General or Deputy Attorney General, stating, "if I had known then what I 
know now, I, of course, would have told the Deputy and the Attorney General." 

The Committee has obtained no evidence indicating that the Attorney General 
authorized gunwalking or that he was aware of such allegations before they became 
public. None of the 22 witnesses interviewed by the Committee claims to have 
spoken with the Attorney General about the specific tactics employed in Operation 
Fast and Furious prior to the public controversy. 


- 5 - 



14 


Testifying before the Senate Judiciary Committee, the Attorney General 

stated: 


This operation was flawed in its concept and flawed in its execution, 
and unfortunately we will feel the effects for years to come as guns that 
were lost during this operation continue to show up at crime scenes 
both here and in Mexico. This should never have happened and it 
must never happen again. 

The strategy of forgoing immediate action in order to build a larger case is 
common in many law enforcement investigations, and the Committee has obtained 
no evidence to suggest that ATF agents or prosecutors in Arizona acted with 
anything but a sincere intent to stem illegal firearms trafficking. 

Nevertheless, based on the evidence before the Committee, it is dear that ATF 
agents in Phoenix and prosecutors in the Arizona U.S. Attorney's Office embarked 
on a deliberate strategy not to arrest suspected straw purchasers while they 
attempted to make larger cases against higher-level targets. Although these officials 
claimed they had no probable cause to arrest any straw purchasers at the time, 
allowing hundreds of illegally purcha.sed military-grade assault weapons to fall into 
the hands of violent drug cartels over the course of five years created an obvious and 
inexcusable threat to public safety on both sides of tlie border. 


- 6 - 



15 


11. METHODOLOGY 


Over the past year, the Committee has conducted an investigation into 
firearms trafficking investigations run by the Phoenix Field Division of the Bureau 
of Alcohol, Tobacco, Firearms and Explosives (ATF). This inquiry was originally 
brought to the Committee's attention by Senator Charles Grassley, the Ranking 
Member of the Senate Judiciary Committee, who had asked ATF to respond to 
allegations that agents had knorvingly allowed the sale of firearms to suspected 
straw purchasers during Operation Fast and Furious. The Committee has been 
joined in its investigation by Majority and Minority staff of the Senate Judiciary 
Committee. 

To date, there have been nine congressional hearings relating to these topics, 
including three before this Committee. Attorney General Eric Holder has agreed 
to testify before the Committee on February 2, 2011. He has testified previously on 
five other occasions regarding these issues, including before the Senate and House 
Judiciary Committees in November and December 2011, respectively. 

Committee staff have interviewed 22 witnesses from the ATF Phoenix Field 
Division, the U.S. Attorney's Office for the District of Arizona, ATF headquarters, 
and the Department of Justice, Committee staff have also interviewed multiple 
Federal firearms dealers. The Department has made numerous officials available 
for briefings, transcribed interviews, and hearings, including the former Deputy 
Attorney General, the Assistant Attorney General for the Criminal Division, the 
Deputy Assistant Attorney General for the Criminal Division, and the U.S. Attorney 
for the District of Arizona. The Department has also organized briefings during the 
course of the investigation, including with senior leaders from the Federal Bureau of 
Investigation (FBI) and Drug Enforcement Agency (DEA). 

In March 2011, the Committee sent letters to ATF and the Department of 
Justice requesting documents and communications. Committee Chairman Darrell 
Issa subsequently issued subpoenas for these documents in March and October 
2011, and he has issued numerous document requests to other agencies, including 
the FBI and DEA. 

The Committee has now obtained more than 12,000 pages of internal emails, 
reports, briefing papers, and other documents from various Federal agencies, 
whistleblowers, firearms dealers, and other parties. The Department of Justice has 
produced approximately 6,000 pages of documents to the Committee, including 
sensitive law enforcement materials related to the pending prosecution of the 
defendants in the underlying Fast and Furious case. 


- 7 - 




16 


The Department has declined to produce some documents, including "reports 
of investigation" and prosecutorial memoranda in the underlying cases. The 
Department has stated that providing these particular documents at this time could 
compromise the prosecution of 20 firearms trafficking defendants scheduled for trial 
in September. In addition, the Department has not provided documents related 
to its internal deliberations about responding to this congressional investigation, 
with the exception of documents and correspondence related to the drafting of 
the February 4, 2011, letter to Senator Grassley, which the Department formally 
withdrew on December 2, 2011. The Deputy Attorney General explained this policy 
in a letter to the Committee: 

The Department has a long-held view, shared by Administrations of 
both political parties, that congressional requests seeking information 
about the Executive Branch's deliberations in responding to 
congressional requests implicate significant confidentiality interests 
grounded in the separation of powers under the U.S. Constitution.' 

The letter stated that the Department made an exception to this policy 
and provided documents relating to the drafting of the February 4 letter because 
Congress had unique equities in understanding how inaccurate information had 
been relayed to it.^ 

On November 4, 2011, Ranking Member Elijah Cummings requested a 
hearing with former Attorney General Michael Mukasey in light of documents 
obtained by the Committee indicating that the former Attorney General was briefed 
in 2007 on an unsuccessful coordinated delivery operation, as well as a proposal to 
expand such operations in the future. Ranking Member Cummings wrote: 

Given the significant questions raised by the disclosures in these 
documents, our Committee's investigation will not be viewed as 
credible, even-handed, or complete unless we hear directly from 
Attorney General Mukasey.’ 

The Committee has not held a hearing with Mr. Mukasey, nor has it 
conducted an interview with him, depriving the Committee of important 
information directly relevant to the origin of these operations. 

In addition, on October 28, 2011, Ranking Member Cummings requested a 
public hearing with Kenneth Melson, the former Acting Director of ATF. He wrote: 

Since the Attorney General has now agreed to appear before Congress 
in December, I believe Members also deserve an opportunity to 
question Mr. Melson directly, especially since he headed the agency 
responsible for Operation Fast and Furious.'' 


- 8 - 



17 


To date, the Committee has declined to hold this hearing. 

In June 2011, Ranking Member Cummings issued a report entitled 
"Outgunned: Law Enforcement Agents Warn Congress They Lack Adequate Tools 
to Counter Illegal Firearms Trafficking."® He also hosted a Minority Forum of 
experts regarding the larger problem of firearms trafficking and the lack of law 
enforcement tools to stem this tide.® 


OlJTGUNNT^D 

Lau KHloiroHM'iil Wain Con^iTss Tlu'v Lijck 

A(l<'<(nat(‘ Tools ro Coiuitor Fircaniis Tntnicluii^ 



Barrett .5B Caliber Sifis 


Miiioi-Uy Staff Rt'jwH. 

R'(']>!Iiik 1 for Raiikinj; Momlx'r Klijah E. (Mniinin^s 
(.'oHimitttH' on Oversight jukI 0<»v<irninent Riiforni 
,)mie30ll 

iUtium rilKnV.-INjnill.jtfMIr^yntli 


- 9 - 




18 


III. BACKGROUND 


Over the past five years, the Mexican government has been locked in a battle 
with drug trafficking organizations seeking control of lucrative trafficking routes 
that carry billions of dollars in narcotics destined for the United States. This battle is 
fueled in part by the tens of thousands of military-grade weapons that cross the U.S. 
border into Mexico every year. In particular, law enforcement officials have reported 
that the "weapons of choice" for international drug cartels are semi-automatic 
rifles and other assault weapons. These weapons are frequently purchased in the 
United States because they are generally illegal to purchase or possess in Mexico.^ 
According to the latest statistics from the Mexican Attorney General's office, 47,515 
people have been killed in drug-related violence since 2006.* 

On November 1, 2011, Assistant Attorney General Lanny Breuer testified 
before the Senate Judiciary Committee that the vast majority of guns recovered in 
Mexico were imported illegally from the United States: 

From my understanding, 94,000 weapons have been recovered in the 
last five years in Mexico. Those are just the ones recovered. Senator, 
not the ones that are in Mexico. Of the 94,000 weapons that have been 
recovered in Mexico, 64,000 of those are traced to the United States.’ 

These statistics are consistent with reports from the Mexican government. 

In May 2010, Mexican President Felipe Calderon stated before a joint session of 

NUMBER OF FIREARMS SEIZED IN MEXICO AND 
TRACED BACK TO THE UNITED STATES, 2004 - 2010 


IBOM 

1B000 


U,2i3 



ry2004 FY2005 FY2006 FYS007 FYSOOS CY2009 C¥2010 


Piic?rBisTraiTiddHg,to Mfxico: A Rejwt&y Swi^ojsi'iamifrFesHStein. C harfss Sdtuint! 
ami .'ihculnii IMiilthoiis* tn Hie PaitstJ taatea Spijate Csunis on inletnaiions! KatcoHcs Control Cutio iOl.li. 
tHn cmiiicm ,\ctxsTui|ahih«v c'lYice Repoit, Firfsins TVsfhckiiigi U.S. ERcfU io Combat .Ami’-' I'rafficivitia i-o 
i^irxicu i-Bc* Sit! naii wt ChalU.ABc**; siid UfCe' .Iran ATF Acting {>irccioi- Kwnctii '.Id.^nn to 

Scnalnr Pcwnr ri'ein^4ein fjime IQiTb). Note: Fi.scsl year, CY~ Calmer Year. 


- 10 - 



19 


Congress that, of the 75,000 guns and assault weapons recovered in Mexico over the 
past three years, more than 80% were traced back to the United States.”’ 

ATF is the primary U.S. law enforcement agency charged with combating 
firearms trafficking from the United States to Mexico. ATF enforces Federal firearms 
laws and regulates the sale of guns by the firearms industry under the Gun Control 
Act of 1968.” ATF reports to the Attorney General through the Office of the Deputy 
Attorney General.'- ATF is organized into 25 Field Divisions led by Special Agents 
in Charge who are responsible for multiple offices within their jurisdiction.” In 
Phoenix, the Special Agent in Charge is currently responsible for offices in Phoenix, 
Flagstaff, Tucson, and Yuma, Arizona, as well as Albuquerque, Las Cruces, and 
Roswell, New Mexico.” 

The U.S. Attorney for the District of Arizona is the chief Federal law 
enforcement officer in the State of Arizona. The District of Arizona has 
approximately 170 Assistant United States Attorneys and approximately 140 support 
staff members split equally between offices in Phoenix and Tucson.'^ As part of its 
responsibilities, the U.S Attorney's Office has primary responsibility for prosecuting 
criminal cases against individuals who violate Federal firearms trafficking laws in its 
region.”^ 

Attorneys from the Department's Criminal Di\'ision in Washington, D.C. 
serve as legal experts on firearms-related issues and assist in prosecuting some 
firearms trafficking cases.” In addition to developing and implementing strategies 
to attack firearms trafficking networks. Criminal Division attorneys occasionally 
assist the U.S. Attorneys' offices in prosecuting firearms trafficking cases.'® 

In 2006, ATF implemented a nationwide program called Project Gunrunner 
to attack the problem of gun trafficking to Mexico.”' Project Gunrunner is part of 
the Department's broader Southwest Border Initiative, which seeks to reduce cross- 
border drug and firearms trafficking and the high level of violence associated with 
these activities on both sides of the border,® 

In June 2007, ATF published a strategy document outlining the four key 
components to Project Gunrunner: the expansion of gun tracing in Mexico, 
international coordination, domestic activities, and intelligence. In implementing 
Project Gunrunner, ATF has focused resources on the four Southwest Border States. 
Additionally, Attorney General Holder has testified that, since his confirmation in 
2009, the Department of Justice has made combating firearms trafficking to Mexico a 
top priority.^' 

In November 2010, the Department of Justice Inspector General issued a 
report examining the effectiveness of Project Gunrunner in stopping the illicit 
trafficking of guns from the United States to Mexico. The Inspector General found 


- 11 - 



20 


that "ATF's focus remains largely on inspections of gun dealers and investigations of 
straw purchasers rather than on higher-level traffickers, smugglers, and the ultimate 
recipients of the trafficked guns." The report recommended that ATF "[fjocus on 
developing more complex conspiracy cases against higher level gun traffickers and 
gun trafficking conspirators." The report also found that U.S. Attorneys' offices 
often declined Project Gunrunner cases because firearms investigations are often 
difficult to prosecute and result in lower penalties,^- 

Typical firearms trafficking cases involve a "sfraw purchase" in which the 
actual buyer of a firearm uses another person, "the straw purchaser," to execute the 
paperwork necessary to purchase the firearm from a gun dealer.” The actual buyer 
typically is someone who is prohibited from buying a firearm and cannot pass the 
background check or who does not want a paper trail documenting the purchase. 
Gun trafficking organizations regularly use straw purchasers who deliver firearms 
to intermediaries before other members of the organizations transfer the guns across 
the border.^"* 

There is no Federal statute specifically prohibiting firearms trafficking or 
straw purchases. Instead, ATF agents and Federal prosecutors use other criminal 
statutes, including; (1) 18 USC § 924(a)(1)(A) which prohibits knowingly making a 
false statement on ATF Form 4473; (2) 18 USC § 922(a)(6) which prohibits knowingly 
making a false statement in connection with a firearm purchase; (3) 18 USC § 
922(g)(1) which prohibits possession of a firearm by a convicted felon; and (4) 

18 use § 922(a)(1)(A) which prohibits engaging in a firearms business without a 
license.” 


CURRENT WEAPONS OF CHOICE 



ary Wessons 
of 

Bushmasisr XM1 5 Rifles 
Romarm Cuglr 7,62 x 33mm rffles 
FN 5.7 X 28mm pisJols 
.50 caliber rifles (Barretf, Beowulf) 
DPMS .223 rifles 
Bereiia Model 32 pisiols 
Taurus PT 9mm pistols 
Coif .38 Super pistols 


Secondary Marttet Inspeetf on 
Weapons Choice 

Colt AR15 Spoiler & Bushmaster 
XM15 rifles 

Romano 7.62 x 39mm rifles 
DPMS and Olympic Arms ,223 rifles 
Norinco, Polytech, and Maadii AKS rifles 
Alexander Arms Beowulf .60 rifles 
Beretta and Taurus 9mm pistols 
Colt .38 Super & ,45 Pistols 



21 


Key ATF Personnel 

nurinn Onffmtinn Fast and Furious I2009-7010) 


HQ 


Kenneth Melson 

Acting Director 


William Hoover 

Deputy Director 


Office of Strategic 
Intelligence and 
Information (OSII) 


Mark Chait 

Assistant Director 
for Field Operations 

r 

William McMahon 

Deputy Assistant Director 
for Field Operations 


I 


Chief of 

International Affairs 


Phoenix 


William Newell 

Special Agent in Charge 


Assistant Special 
Agents in Charge 


Mexico 


Attache to 
Mexico 


I 


Group Supervisor 


Group VII 


Special Agent 


Special Agent 


Special Agent 


Special Agent 


- 13 - 












22 


Key DOJ Personnel 

During Operation Fast and Furious (2009-2010) 



- 14 - 














23 


IV. FINDINGS 


A. ATF Phoenix Field Operations 

Involving "Gunwalking" 

Documents obtained by the Committee and transcribed interviews conducted 
by Committee staff have identified a series of gunwalking operations conducted 
by ATF's Phoenix Field Division, Beginning in 2006, each of these investigations 
involved various incarnations of the same activity: ATF-Phoenix agents were 
contemporaneously aware of suspected illegal firearms purchases, they did not 
typically interdict the weapons or arrest the straw purchasers, and those firearms 
ended up in the hands of criminals on both sides of the border. 



I. Operation Wick" Receiver (2006-07) 

Operation Wide Receiver began in early 2006 when ATF agents in Tucson 
opened an investigation of a suspected straw purchaser after receiving information 
from a cooperating gun dealer. Documents indicate that agents worked closely with 
this dealer, including by contemporaneously monitoring firearms sales to known 
straw purchasers without arrests or interdiction, and that they sought authorization 
for the expansion of this operation from then-U.S, Attorney for the District of 
Arizona, Paul Charlton, 

The evidence also indicates that, between March 2006 and mid-2007, ATF 
agents had contemporaneous knowledge of planned sales of firearms to known 
straw purchasers and repeatedly designed surveillance operations of these illegal 
firearms purchases without effectuating arrests. According to documents obtained 
by the Committee, agents avoided interdicting weapons despite having the legal 
authority to do so in order to build a bigger case. Despite repeated failed attempts 
to coordinate surveillance with Mexican law enforcement the ATF agents continued 
to attempt these operations. 


- 15 - 






24 


Although the operational phase of the investigation ended in 2007, the case 
was not prosecuted for more than two years, during which time no arrests were 
made and the known straw purchasers remained at large. A prosecutor from the 
Criminal Division of the Department of Justice who was assigned to Operation Wide 
Receiver in 2009 and reviewed the case file raised concerns that many guns had 
"walked" to Mexico. 

ATF-Phoenix monitored gun dealer selling to straw buyers 

In March 2006, ATF-Phoenix agents received a tip from a Federal Firearms 
Licensee (FFL) in Tucson, Arizona, that a suspected straw purchaser had purchased 
six AR-15 lower receivers and placed an order for 20 additional lower receivers.®’ 

The agents opened an investigation of the purchaser because the nature of the 
transaction suggested a possible connection to illegal firearms trafficking.^^ 

Some military-style firearms consist of an upper and lower receiver, with the 
low'er receiver housing the trigger mechanism, and the upper receiver including 
the barrel of the firearm. According to a memorandum from the U.S. Attorney's 
Office, ATF had information that the suspects were obtaining both receivers and 
assembling them to create illegal firearms.^® The firearms were illegal because the 
barrels were 10.5 inches in length, and rifles with barrels shorter than 16 inches must 
be registered and licensed with ATF.^’ 

According to summaries prepared subsequently by a Department of Justice 
attorney prosecuting the case, "The FFL agreed to work with ATF to target the 
persons who were interested in purchasing large quantities of lower receivers 
for AR-15s." Specifically, "The FFL agreed to consensual recordings both of the 
purchases and phone calls."®® Soon thereafter, ATF-Phoenix briefed prosecutors 
in the Arizona U.S. Attorney's Office that several suspicious individuals were 
purchasing "large quantities of lower receivers" from a Tucson FFL.®' 

In a June 22, 2006, memorandum, the Special Agent in Charge of ATF-Phoenix 
explained that the three suspects in the case had purchased a total of 126 AR-15 
lower receivers. According to the memo, one of the suspected straw purchasers 
"advised the CS [confidential source] that he takes the firearms to a machine shop 
at or near Phoenix, AZ and they are converted into machine guns." The ATF agents 
also suspected that these firearms were making their way to Mexico and into the 
hands of a dangerous drug cartel. Specifically, the Special Agent in Charge wrote 
that, "ATF just recently tracked the vehicle to Tijuana, Mexico,"and one suspected 
straw purchaser "stated that these straw purchased firearms are going to his boss in 
Tijuana, Mexico where some are given out as gifts."®® 

A'FF agents learned that the suspected straw purchasers were seeking a new 
supplier of upper receivers: 


- 16 - 



25 


The purchasers have asked the FFL to provide the uppers to them as 
rvell, indicating that they are not pleased with their current source 
for the uppers. The FFL has expressed reluctance to the purchasers 
regarding selling them both the lowers and the 10.5 inch uppers, as 
that would look very suspicious as if he was actually providing them 
with an illegal firearm. The purchasers are well aware that it is illegal 
to place a 10.5 inch upper on the lowers they are purchasing from the 
FFL. The FFL has indicated that he could try to find another 3rd party 
source of uppers for the purchasers.^^ 

According to legal research provided by ATF counsel to attorneys in the U.S. 
Attorney's Office, it is illegal to possess both the upper and lower receivers, even if 
they are not assembled: "The possessor does not have to assemble the lower and the 
upper so long as the firearm is in actual or constructive possession of the offender, 
and can be 'readily restored' to fire."'^ 

Despite evidence that the suspects illegally possessed both upper and lower 
receivers, were assembling them, and rvere transporting them to Mexico, ATF 
did not arrest the suspects. On March 31, 2006, the Resident Agent in Charge of 
the Tucson office— a local office that reports to the Special Agent in Charge of the 
Phoenix Field Division— wrote an email explaining that they had enough evidence 
to arrest the suspects, but that they were waiting to build a bigger case. He wrote: 

We have fwo AUSA assigned to this matter, and the USAO @ Tucson 
is prepared to issue Search and Arrest Warrants. We already have 
enough for the 371 and 922 a6 charges, but we want the Title 11 
manufacturing and distribution pieces also— we want it all,-’^ 

ATF-Phoenix sought U.S. Attorney's approval to walk guns 

The evidence indicates that, rather than arrest the straw buyers, the ATF 
Phoenix Field Division sought the approval of the U.S. Attorney's Office to let the 
guns walk in June 2006. The prosecutors handling the case wrote a memorandum to 
Paul Charlton, U.S, Attorney for the District of Arizona, which outlined the request. 
They wrote: 

ATF is interested in introducing a Cl [confidential informanti to act 
as this source of uppers. This would further the investigation in that 
it would provide more solid evidence that the purchasers are in fact 
placing illegal length uppers on the lowers that they are purchasing 
from the currently-involved FFL, It may also lead to discovery of more 
information as to the ultimate delivery location of these firearms and/ 
or the actual purchaser.-^ 


- 17 - 



26 


ATF-Phoenix and the Arizona U.S. Attorney's Office both understood that 
ATF was already letting firearms walk by working with a cooperating FFL to provide 
"lower receivers" to straw purchasers trafficking them to Mexico. According to the 
prosecutors' memorandum to U.S. Attorney Charlton: 

[The ATF Agent] pointed out that these same exact firearms are 
currently being released into the community, the only difference being 
that at this time ATF is only involved in providing the lower receiver. 

We know that an illegal upper is being obtained from a third party, but 
the government is not currently involved in that aspect.’^ 

The memo to U.S. Attorney Charlton then relayed ATF-Phoenix's request: 

The question was posed by RAC [Resident Agent in Charge] Higman 
as to the U.S. Attorney's Office's position on the possibility of allowing 
an indeterminate number of illegal weapons, both components of 
which (the upper and the lower) were provided to the criminals 
with ATF's knowledge and/or participation, to be released into the 
community, and possibly into Mexico, without any further ability by 
the U.S. Government to control their movement or future use. 

The memo further stated that the proposed tactics were controversial and 
opposed by ATF's legal counsel: 

[The ATF agent] indicated that ATF's legal counsel is opposed to 
this proposed method of furthering the investigation, citing moral 
objections. Recognizing that it will eventually be this office that will 
prosecute the individuals ultimately identified by this operation, 

RAC Higman has requested that we ascertain the U.S. Attorney's 
Office's position with regard to this proposed method of furthering the 
investigation.^* 

When the Chief of the Criminal Division in the U.S. Attorney's Office sent the 
prosecutor's memo to U.S. Attorney Charlton, she accompanied it with an email in 
which she stated that it "does a very good job outlining the investigation and the 
potential concerns. This is obviously a call that needs to be made by you Paul."-” 

U.S. Attorney Charlton responded the next day: "Thanks — I'm meeting with the 
ATF SAC [Special Agent in Charge William Newell] on Tuesday and I'll discuss it 
with him then."*” 

Although the Committee has obtained no document memorializing the 
subsequent conv'ersation between U.S. Attorney Charlton and the Special Agent 
in Charge, documents obtained by the Committee indicate that ATF-Phoenix went 
forward with their plans to observe or facilitate hundreds of firearms purchases by 


- 18 - 



27 


the suspected straw purchasers without arrests. Committee staff did not conduct a 
transcribed interview of Mr. Charlton. 



ATF-Phoenix continued to walk guns after consulting with U.S. 
Attorney 


In October 2006, ATF agents planned a surveillance operation to observe 
a suspect purchase AR-15 lower receivers and two AR-15 rifles, determine if the 
suspect was going to make additional purchases, and identify any of his associates." 
The Operational Plan noted: 

It is suspected that [the suspect] will now be moving the firearms to 
Tijuana him.self. We are not prepared to make any arrests at this time 
becau.se we are still attempting to coordinate our efforts with AFI 
[Agencia Federal de Investigacion] in Mexico. ... If it is determined 
that [the suspect] has spotted the surveillance unit, surveillance will be 
stopped immediately,'*^ 

Documents indicate that ATF agents observed the suspect purchase five 
AR-15 lower receivers and terminated surveillance after three hours.*^ Notes taken 
after the investigation explained that the surveillance included audio recordings of 
the suspect stating that he "is now personally transporting the firearms to Tijuana, 
Mexico himself." 

On December 5, 2006, Special Agent in Charge Newell wrote that another key 
suspect in the Wide Receiver investigation had recently "purchased a total of ten (10) 


- 19 - 


28 


AR-15 type lower receivers on two separate purchases."'''’ He also wrote that, during 
those transactions, the suspect told the confidential source that he was taking the 
firearms to Mexico and would soon be ordering an additional 50 lower receivers."*'’ 
Special Agent in Charge Newel! wrote that the Tucson field office was planning to 
secure the cooperation of Mexican authorities: 

The Tucson II Field Office has maintained contact with the ATF Mexico 
City Country Office in an effort to secure the cooperation and join 
investigation with the Agencia Federal de Investigacion (Mexico). 

Three Tucson II Field Office SA have obtained official U.S. Government 
passports in anticipation of a coordination meeting with the AFT early 
during calendar year 2007.''' 

On February 23, 2007, ATF agents planned to conduct a traffic stop of one 
suspected straw purchaser "with the assistance of the Tucson Police Department."** 
Although the Operational Plan indicated that "[pjrobable cause exists to arrest [the 
suspect]," the agents' goal was to lawfully detain him at the traffic stop and bring 
him to the ATF office for questioning.*'' According to a memorandum from Special 
Agent in Charge Newell, between February 7 and April 23, 2007, the suspect and 
co-conspirators together purchased and ordered 1.50 firearms, including AK-47 and 
AR-15 rifle,s and pistols.* Although ATF apparently had probable cause for arrest, 
on February 27, 2007, the subject was interviewed by ATF agents and released.*' The 
documents do not indicate why he was not arrested and prosecuted at that time. 

ATF agents unsuccessfully attempted to coordinate with Mexico 

The documents indicate that, although ATF had sufficient evidence to arrest 
the suspected straw purchasers, the agents continued to press forward with plans 
to attempt coordinated surveillance operations with Mexico. In April 2007, the 
ATF agents in charge of Operation Wide Receiver were unsure whether they could 
successfully coordinate .surveillance with their Mexican counterparts. On April 10, 
2007, the case agent for Wide Receiver wrote to a Tucson Police Department (TPD) 
officer: 


Assuming that the MCO [ATF's Mexico Country Office] can coordinate 
with the Mexican authorities, we anticipate that Tucson VCIT will 
hand off his surveillance operation at the U.S. / Mexican border. 

No ATF SA or local officers working at our direction will travel 
into Mexico. Through MCO we have requested that the Mexican 
authorities pick up the surveillance at the border and work to identify 
persons, telephone numbers, "stash" locations and source(s) of money 
supply in furtherance of this conspiracy.*^ 


- 20 - 



29 


According to an ATF Operational Plan, just one day later, ATF agents and 
Tucson Police officers conducted surveillance and recorded the "planned arrival 
of [the suspect] and other persons at the FFL."^-’ The Operational Plan stated 
that U.S. law enforcement would watch the "firearms cross international lines 
and enter Mexico. ... If the Mexican authorities decline or fail to participate in 
this operation the firearms traffickers will be arrested prior to leaving the United 
States. Although the agents obtained an electronic record of the sale and initiated 
surveillance, the plan failed according to a summary prepared by one agent: 

ATF agents in conjunction with TPD VCIT Task Force Officers 
conducted a surveillance of suspected firearms traffickers in 
furtherance of this investigation. Suspects purchased 20+ firearms 
which totaled over $35,000.00 in retail cost. The surveillance 
successfully obtained electronic evidence of the transaction, further 
identified the traffickers and additional suspect vehicles. The 
traffickers were followed to a neighborhood on the Southside of 
Tucson and then later lost. The suspects are planning on making a 
purchase of 20-50 M4 rifles and arc negotiating this next deal. The 
investigation continues.’^ 

Despite the surveillance of the straw purchase and other evidence collected 
during the April 11, 2007, operation, the suspects were not arrested even after they 
were later located. Instead, more operations were planned. 

An April 23, 2007, memo from Special Agent in Charge Newell to the Chief 
of Special Operations requesting additional funding for Operation Wide Receiver 
documented the failure to coordinate surveillance with Mexican law enforcement 
and public safety risks associated with continuing on that course: 

To date, the Tucson II Field Office and TPD SID have been unable 
to surveil the firearms to the International border. From contact 
with those offices, the Mexican Federal law enforcement authorities 
understand that the surveillance is difficult and that several firearms 
will likely make it to Mexico prior to a U.S. law enforcement successful 
surveillance of firearms to the international border.^*’ 

Two weeks later, on May 7, 2007, ATF agents and Tucson Police conducted 
surveillance of another "planned arrival" of a suspected straw purchaser and his 
associates at an FFL.^^ The Operational Plan shows that ATF agents had advance 
notice that the suspect had contacted the FFL to arrange the purchase of more than 
20 firearms, planned to purchase the firearms from the FFL later in the day, and 
had made arrangements for a vehicle to transport the weapons into Mexico that 
night.® The Operational Plan indicated that "[i]f the Mexican authorities decline 
or fail to participate, the firearms traffickers will be arrested prior to leaving the 


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30 


United States."™ ATF agents contacted Mexican law enforcement in advance of the 
operation and they agreed to assist with surveillance of the suspects if they entered 
Mexico.™’ According to a subsequent summary of these events; 

[The suspects] were scheduled to purchase the ordered firearms. 

[Redacted] cancelled at the last minute, but [the suspect] purchased 15 
firearms and was surveilled to his residence at [redacted]. Surveillance 
was discontinued the following day due to neighbors becoming 
suspicious of surveillance vehicles."’’’ 

The suspects were not arrested, the firearms were not interdicted, and the 
investigation continued in anticipation of the suspects' next major purchase. 

ATF agents expressed concern about gunwalking 

Agents in ATF's Phoenix Field Division began to express concern that 
Operation Wide Receiver was not yielding the desired results. In a June 7, 2007, 
email, one special agent on the case wrote to his supervisor: 

We have invested a large amount of resources in trying to get the load 
car followed to Mexico and turning it over to PGR [Mexican federal 
prosecutors] and are preparing to expend even more. We already have 
numerou.s charges up here and actually taking in to Mexico doesn't 
add to our case specifically at that point. We want the money people 
in Mexico that are orchestrating this operation for indictment but 
obviously we may never actually get our hands on them for trial, so 
the real beneficiary is to PGR." 

Despite the agent's concerns, Operation Wide Receiver remained on the 
same course with another "planned arrival" attempted on June 26, 2007." The 
Operational Plan indicated that ATF agents had advance notice that the suspect 
had been in contact with the FFL, that the suspect was "extremely anxious" to 
purchase more firearms, and that firearms are to be purchased and tlien continue to 
"unknown locations throughout Tucson and Southern Arizona."'” Documents show 
that ATF agents and Tucson police were unable to follow the firearms to the Mexican 
border.''-’’ 

In an email sent on June 26, 2007, as the surveillance operation was set to 
begin, the ATF case agent for Operation Wide Receiver expressed reluctance about 
the repeated failures to coordinate surveillance of firearms traffickers with Mexican 
law enforcement.'"’ He wrote to a prosecutor at the Texas U.S. Attorney's Office: 

We anticipate surveillance this evening where the subject(s) of interest 
are scheduled to purchase approx. $20K of associated firearms for 


- 22 - 



31 


further shipment to Caborca, Mx, and we are coordinating with the 
Mexican authorities in the event that the surveillance is successful. We 
have reached that stage where I am no longer comfortable allowing 
additional firearms to 'walk/ without a more defined purpose,*’^ 

Criminal Division took over prosecution and found gunwalking 

In late 2007, the operational phase of Operation Wide Receiver was 
terminated, and the case was passed to the U.S. Attorney's Office for prosecution. 
The case then sat idle for nearly two years without indictments or arrests. The 
first prosecutor assigned to the case became a magistrate judge, and the second 
prosecutor did not open the case file for more than six months.® 

In 2009, the Department of Justice's Criminal Division in Washington, D.C. 
offered to assign prosecutors to support firearms trafficking cases in any of the five 
border-U.S. Attorneys' offices.^ The U.S. Attorney's Office in Arizona accepted the 
offer and asked for assistance with the prosecution of targets in Operation Wide 
Receiver,^“ In September 2009, the Criminal Division assigned an experienced 
prosecutor to take over the case.^' 

After reviewing the investigative files from 2006 and 2007, the Criminal 
Division prosecutor quickly realized that there were serious questions about how 
the case had been handled. On September 23, 2009, she wrote an email to her 
supervisors giving a synopsis of the case and its problems: "In short it appears that 
the biggest problem with the case is its [sic] old should have been taken down last 
year AND a lot of guns seem to have gone to Mexico."^’ 

As she prepared the case for indictment, she continued to update her 
supervisors as new details emerged from the case file. On March 16, 2010, she sent 
an email to her supervisor: 

It is my understanding that a lot of those guns "walked." Whether 
some or all of that was intentional is not known. The AUSA seemed 
to think ATF screwed up by not having a mechanism in place to seize 
weapons once they crossed the border.'^ 

The prosecutor also found evidence that guns involved in Operation Wide 
Receiver were connected to crime scenes in Mexico. She wrote that "13 of the 
purchased firearms have been recovered in Mexico in connection with crime scenes, 
including the April 2008 Tijuana gun battle" and that "[t]wo potential defendants 
were recently murdered in Mexico."^'' 

The Criminal Division proceeded with prosecutions relating to the 
investigation. In May 2010, one suspect pleaded guilty to forfeiture charges pre- 


- 23 - 



32 


indictment while two additional co-conspirators were indicted in federal court,’’ On 
October 27, 2010, seven additional suspects were indicted in the District of Arizona 
on gun-trafficking related charges.^*' 



2, The Hernandez Case (2007) 

According to documents obtained by the Committee, agents in the ATF 
Phoenix Field Division unsuccessfully attempted a second operation in the summer 
of 2007 after identifying Fidel Flernandez and several alleged co-conspirators as 
suspected straw purchasers seeking to smuggle firearms into Mexico. Despite failed 
attempts to coordinate with Mexican authorities, ATF agents sought approval from 
the U.S. Attorney's Office to expand so-called "controlled deliveries." In addition, 
documents obtained by the Committee indicate that then-Attorney General Michael 
Mukasey was personally briefed on these failed attempts and was asked to approve 
an expansion of these tactics. During the course of the investigation, Hernandez and 
his co-conspirators reportedly purchased more than 200 firearms. 

ATF-Phoenix watched guns cross border without interdiction 

According to their Operational Plan, ATF-Phoenix Field Division agents 
initiated a firearms trafficking investigation in July 2007 against Fidel Hernandez 
and his associates who, between July and October 2007, "purchased over two 
hundred firearms" and were "believed to be transporting them into Mexico,"'^ ATF 
analysts discovered that "Hernandez and vehicles registered to him had recently 
crossed the border (from Mexico into the U.S.) on 23 occasions" and that "four of 
their firearms were recovered in Sonora, Mexico."^* 

According to contemporaneous ATF documents, ATF-Phoenix unsuccessfully 
attempted a cross-border operation in September 2007 in coordination with Mexican 
law' enforcement authorities: 

On September 26 and 27, 2007, Phoenix ATF agents conducted 

nonstop surveillance on Hernandez and another associate, Carlos 

Morales. ATF had information that these subjects were in possession 


- 24 - 






33 


of approximately 19 firearms (including assault rifles and pistols) 
and were planning a firearm smuggling trip into Mexico. The 
surveillance operation was coordinated with Tucson I Field Office and 
the ATF Mexico Country Attache. The plan, agreed to by all parties 
and authorized by the Phoenix SAC, was to follow these subjects 
to the border crossing in Nogales, Arizona while being in constant 
communication with an ATF MCO [Mexico Country Office] agent 
who would be in constant contact with a Mexican law enforcement 
counterpart at the port of entry and authorized to make a stop of the 
suspects' vehicle as it entered into Mexico, 

On September 27, 2007, at approximately 10:00 pm, while the Phoenix 
agents, an MCO agent and Mexican counterparts were simultaneously 
on the phone, the suspects' vehicle crossed into Mexico. ATF agents 
observed the vehicle commit to the border and reach the Mexican side 
until it could no longer be seen. The ATF MCO did riot get a response 
from the Mexican authorities until 20 minutes later when they 
informed the MCO that they did not see the vehicle cross.™ 

ATF headquarters raised concerns about operational safeguards 

Failed attempts to coordinate with Mexican authorities to capture suspected 
firearms traffickers as part of controlled deliveries raised serious concerns at ATF 
headquarters. On September 28, 2007, the day after the failed attempt, Carson 
Carroll, ATF's then-Assistant Director for Enforcement Programs, notified William 
Hoover, ATF's then-Assistant Director of Field Operations, that they had failed in 
their coordination. Mr. Carroll stated that when the suspected firearms traffickers 
were observed purchasing a number of firearms from an FFL in Phoenix, Arizona, 
ATF officials "immediately contacted and notified the GOM [Government of Mexico] 
for a possible controlled delivery of these weapons southbound to the Nogales, AZ., 
us/Mexico Borcier."*’ Mr. Carroll continued: 

ATF agents observed this vehicle commit to the border and reach the 
Mexican side until it could no longer be seen. We, the ATF MCO did 
not get a response from the Mexican side until 20 minutes later, who 
then informed us that they did not see the vehicle cross.*' 

According to internal ATF documents, ATF agents attempted a second 
cross-border controlled delivery with Mexican authorities on October 4, 2007. That 
operation also failed to lead to the successful capture of the subject in Mexico.® 

That same day, Assistant Director Hoover sent an email to Assistant Director 
Carroll and ATF-Phoenix Field Division Special Agent in Charge William Newell 
demanding a cal! to discuss the investigation; 


- 25 - 



34 


Have we discussed the strategy with the US Attorney's Office re 
letting the guns walk? Do we have this approval in writing? Have 
we discussed and thought thru the consequences of same? Are we 
tracking south of the border? Same re US Attorney's Office. Did we 
find out why they missed the handoff of the vehicle? What are our 
expected outcomes? What is the timeline?®^ 

The next day. Assistant Director Hoover wrote Mr. Carroll again: 

I do not want any firearms to go South until further notice. 1 expect 
a full briefing paper on my desk Tuesday morning from SAC Nervell 
with every question answered. I will not allow this case to go fortvard 
until we have written documentation from the U.S. Attorney's Office 
re full and complete buy in. 1 do not want anyone briefed on this case 
until I approve the information. This includes anyone in Mexico.*^ 

Mr. Hoover's concerns seem to have temporarily halted controlled delivery 
operations in the Hernandez investigation. On October 6, 2007, Special Agent in 
Charge Newell wrote to Assistant Director Carroll: 

Tm so frustrated with this whole mess Tm shutting the case down and 
any further attempts to do something similar. We're done trying to 
pursue new and innovative initiatives— it's not worth the hassle."® 

Nevertheless, Mr. Newell insisted that he did have approval from the U.S. 
Attorney's Office. He wrote: 

We DO have them [the U.S. Attorney's Office] on board and as a matter 
of fact they (Chief of Criminal John Tucchi) recently agreed to charge 
the firearms recipients in Mexico (if we could fully [ID] them via a 
controlled delivery) with a conspiracy charge in US court."® 

Despite the concerns expressed by Assistant Director Hoover, ATF 
operational plans show that additional controlled deliveries were planned for 
October 18, November 1, and November 26-27, 2007.*' The documents describe 
ATF plans to observe the purchases at the FFL, follow the suspects "from the FFL in 
Phoenix, AZ to the Mexican port of entry in Nogales, Arizona," allow the suspects to 
"cross into Mexico," and allow "Mexican authorities to coordinate the arrest of the 
subjects."® 

Attorney General Mukasey briefed and asked to "expand" operations 

In the midst of these ongoing operations, on November 16, 2007, Attorney 
General Michael Mukasey received a memorandum in preparation for a meeting 


- 26 - 



35 


with Mexican Attorney General Medina Mora. The memo described the Hernandez 
case as "the first ever attempt to have a controlled delivery of weapons being 
smuggled into Mexico by a major arms trafficker."**' The briefing paper warned 
the Attorney General that "the first attempts at this controlled delivery have not 
been successful.'"'" Despite these failures, the memorandum sought to expand such 
operations in the future: 

ATF would like to expand the possibility of such joint investigations 
and controlled deliveries — since only then will it be possible to 
investigate an entire smuggling network, rather than arresting simply 
a single smuggler."’ 

This briefing paper was prepared by senior officials at ATF and the 
Department of Justice only weeks after Assistant Director Hoover had expressed 
serious concerns with the failure of these tactics.’^ 

The emails exchanging drafts of the Attorney General's briefing paper 
also make clear that ATF officials understood that these were not, in fact, the 
first operations that allowed guns to "walk." Assistant Director Carroll wrote to 
Assistant Director Hoover: "I am going to ask DOJ to change 'first ever' . . . there 
have [been] cases in the past where we have walked guns.""’ That change never 
made it into the final briefing paper for Attorney General Mukasey. 

Ten days after Attorney General Mukasey was notified about the failed 
surveillance operations and was asked to expand the use of the cross-border gun 
operation.s, ATF agents planned another surveillance operation in coordination with 
Mexico. The Operational Plan stated: 


1) Surveillance units will observe [redacted] where they will attempt to 
confirm the purchase and transfer of firearms by known targets. 

2) Once the transfer of firearms is confirmed through surveillance, 
units will then follow the vehicle and its occupants from the FFL in 
Phoenix, AZ to the Mexican port of entry in Nogales, Arizona. Once 
the subjects cross into Mexico, ATF attaches will liaison with Mexican 
authorities to coordinate the arrest of the subjects. 

3) ATF agents will not be involved with the arrest of the subjects in 
Mexico but will be present to coordinate the arrest efforts between 
surveillance units and Mexican authorities as well as to conduct post- 
arrest interviews.'" 


- 27 - 



36 


As part of this operation, surveillance units were monitoring the FFL during 
normal business hours in order to observe large firearms transfers by their known 
targets,® 

The Committee has not received any documents indicating that ATF-Phoenix 
agents were able to successfully coordinate 
with Mexican law enforcement to interdict 
firearms in the Hernandez case. During 
the course of the investigation, Hernandez 
and his co-conspirators purchased more 
than 200 firearms. In multiple instances, 

ATF agents witnessed Hernandez and his 
associates take these weapons into Mexico.* 

Hernandez and his a.ssociate were 
arrested in Nogales, Arizona on November 
27, 2007, while attempting to cross the 
border into Mexico.® The defendants 
were charged with Conspiracy to Export 
Firearms, Exporting Firearms, and two 
counts of Attempted Exportation of 
Firearms. The defendants were brought to 
trial in 2009, but acquitted after prosecutors 
were unable to obtain the cooperation 
of the Mexican law enforcement officials 
who had recovered firearms purchased by 
Hernandez. An ATF briefing paper from 2009 summarized the result: 

The judge also would not allow us to introduce evidence of how the 
guns were found in Mexico unless we could produce the Mexican 
Police Officials who located the guns. VVe were unable to obtain the 
cooperation of Mexican law enforcement to identify and bring these 
witnesses to trial to testify.* 

At the conclusion of the trial, the jury was unable to reach a verdict on three 
counts of the indictment and the defendants were acquitted on a fourth charge.'” 



- 28 - 




37 



2006-07 2007 2009-10 


3. I'lie Medrano Case (2008) 

In February 2008, ATF agents in Phoenix began investigating a straw 
purchasing network led by Alejandro Medrano. Documents obtained by the 
Committee indicate that on multiple occasions throughout 2008, ATF agents were 
aware that Medrano and his associates were making illegal firearms purchases 
and trafficking the weapons into Mexico. According to documents obtained by the 
Committee, ATF-Phoenix did not arrest suspects for approximately one year while 
their activities continued, instead choosing to continue surveillance. During the 
summer of 2008, agents from U.S, Immigrahon and Customs Enforcement (ICE) 
raised concerns about the tactics being used, but the tactics continued for several 
more months. On December 10, 2008, a criminal complaint was filed against 
Medrano and his associates in the United States District Court for the District of 
Arizona, and the targets were later sentenced to varying prison sentences. 

ATF agents watched as firearms crossed the border 

An ATF-Phoenix Operational Plan obtained by the Committee describes an 
instance on June 17, 2008, in which ATF agents watched Medrano and an associate, 
Hernan Ramos, illegally purchase firearms at an FFL in Arizona, load them in their 
car, and smuggle them into Mexico: 

Agents observed both subjects place the firearms in the backseat and 
trunk [of a vehicle]. Agents and officers surveilled the vehicle to 
Douglas, AZ where it crossed into Mexico at the Douglas Port of Entry 
(POE) before a stop could be coordinated with CBP [Customs and 
Border Protection].’® 

Neither Medrano nor Ramos was arrested or detained at the time or in the 
months after. The Operational Plan does not include any indication that ATF agents 
attempted to coordinate with Mexican law enforcement. The fact that the suspects 
continued to make firearms purchases in the United States and take them to Mexico 
suggests that they were not intercepted by Mexican law enforcement. 


- 29 - 





38 


In the two months following these surveillance operations, Medrano and 
his co-conspirators purchased several additional firearms at gun shows and from 
FFLs in the Phoenix area.'*” The suspects also continued to travel back and forth to 
Mexico.*”^ The ATF Operational Plan also stated: 

The group particularly targeted gun shows where several members 
purchased firearms from various FFUS. According to TECS [the 
Treasury Enforcement Communications System, a government 
database used to track individuals' travel patterns], identified subjects 
routinely crossed into Mexico prior to and following a large number 
of firearms purchases. While only purchasing a small number of 
firearms, MEDRANO crossed into Mexico utilizing several vehicles 
that were not registered to him or his immediate family. MEDRANO 
routinely returned to the US on foot while other identified subjects 
drove a vehicle into the US, It is believed that identified subjects 
entering the US on foot were carrying bulk cash to pay for future 
firearms.*™ 

According to the Operational Plan, multiple firearms connected to the 
network were recovered in Mexico, some very soon after they were sold: 

Flernan RAMOS purchased a 7.62 caliber rifle in February 2008 that 
was recovered in June 2008. Jose ARIZMENDIZ purchased two pistols 
that were recovered at the same location in Mexico. One of the pistols 
had a time to crime of fifteen (15) days."” 

ICE agents raised concerns 

Documents obtained by the Committee indicate that in the summer of 2008, 
ATF agents handling the Medrano investigation met with ICE agents to coordinate 
surveillance of another cross-border smuggling attempt. At this meeting, ICE agents 
balked when they learned about the tactics being employed by ATF-Phoenix. On 
August 12, 2008, the head of ICE's offices in Arizona wrote to ATF Special Agent in 
Charge Newell asking for an in-person meeting about the dispute among agents 
over ATF operational plans to allow straw purchased guns to cross the border: 

One of [the ICE] groups worked with your guys over the weekend on 
a surveillance operation at a Tucson gun show. While we had both 
met in advance with the USAO, our agents left that meeting with the 
understanding that any weapons that were followed to the border 
would be seized. On Friday night, however, our agents got an op 
plan that stated that weapons would be allowed to go into Mexico for 
further surveillance by LEAs [law enforcement agents] there."” 


- 30 - 



39 


In his response, Mr. Newell acknowledged that letting guns cross the border 
was part of ATF's plan, but stated that he needed more information about what had 
happened: 

I need to get some clarification from my folks tomorrow because 1 was 

told that your folks were aware of the plan to allow the guns to cross, 

in close cooperation with both our offices in Mexico as well as Mexican 

Feds.'®" 

Although the subsequent correspondence does not explain how this dispute 
was resolved, the Medrano trafficking network reportedly supplied over 100 
assault rifles and other weapons "to a member of the Sinaloan drug cartel known as 
'Rambo,'"'"' 

Criminal complaint also confirms "gunwalking" 

On December 10, 2008, Federal prosecutors filed a complaint in the United 
States District Court for the District of Arizona that describes in detail gun 
trafficking activities conducted by Medrano and his associates that involved more 
than 100 firearms over the course of the year. The complaint confirms that ATF 
agents watched as Medrano and his associates trafficked illegal firearms into Mexico. 
For example, the complaint discusses the incident on June 17, 2008, discussed above, 
in which ATF agents observed the suspects purchase weapons, load them in their 
car, and drive them to Mexico. The complaint states: 


On or about June 17, 2008, at or near 
Tucson, Arizona, Alejandro Medrano 
and Hernan Ramos went together 
to Mad Dawg Global, a federally 
licensed firearms dealer, where 
Hernan Ramos purchased six (6) 

.223 caliber rifles for approximately 
$4800.00 and falsely represented 
on the 4473 that he was the actual 
purchaser. Both Alejandro Medrano 
and Hernan Ramos placed the six 
(6) rifles in the back seat of their 
vehicle.'”* 

The complaint then explains that the 
suspects drove these firearms across the 
border. It states: 



-31 




40 


Alejandro Medrano drove Heman Ramos's vehicle with Hernan 
Ramos as a passenger from Mad Dawg Global in Tuscon, Arizona, to 
the Douglas Port of Entry where they both entered into Mexico with at 
least the six (6) ,223 caliber rifles in the vehicle.’'” 

The complaint states that the information was obtained by ATF agents 
conducting surveillance: 

ATF Special Agents conducted surveillance, recorded firearms 
transactions, and identified the dates and times that the conspirators 
herein crossed the international border either in vehicles or on foot.’"’ 

The complaint also describes how quickly Medrano and his associates 
traveled back and forth between the United States and Mexico for additional firearm 
purchases. For example, in one instance on May 21, 2008, Hernan Ramos entered 
the United States and returned to Mexico "less than two hours later in the same 
vehicle," The complaint also states that in another instance on August 13, 2008, 
Medrano and an associate entered the United States "driving a vehicle which had 
entered into Mexico approximately fifteen minutes earlier."’" 

On August 9, 2010, Medrano was "sentenced to 46 months in prison for his 
leadership role in the conspiracy."”^ Ramos was sentenced to 50 months in prison 
and "[mjost of the remaining defendants in the conspiracy received prison terms 
ranging from 14 to 30 months."”’ Many of fhe firearms purchased by the Medrano 
network were subsequently recovered in Mexico.'” 



2006-07 2007 


2008 2009-10 


4. Operation Fast and Furious (2009-10) 

The investigation that became known as Operation Fast and Furious began 
in the ATF Phoenix Field Division in October 2009, Despite having identified 20 
suspects who paid hundreds of thousands of dollars in cash to buy hundreds of 
military-grade firearms on behalf of the same trafficking ring, ATF-Phoenix and 
the Arizona U.S. Attorney's Office asserted that they lacked probable cause for any 
arrests. Three months into the investigation, they agreed instead on a broader 


- 32 - 





41 


strategy to build a bigger case against cartel leaders, rather than straw purchasers, 
through long-term surveillance and wiretaps. While they pursued this broader 
strategy, ATF-Phoenix agents did not interdict hundreds of firearms purchased and 
distributed by the suspects under their surveillance. In March 2010, the Deputy 
Director of ATF became concerned with the operation and ordered an "exit" strategy 
to bring indictments within 90 days. The documents indicate that ATF-Phoenix field 
agents chafed against this directive, however, and allowed suspect purchases to 
continue for months in an effort to salvage the broader goal of the investigation. In 
January 2011, the U.S. Attorney's Office indicted 19 straw purchasers and the local 
organizer of the network, all of whom had been identified at the beginning of the 
investigation in 2009. 

Initiated by ATF-Phoenix in the Fall of 2009 

According to documents obtained by the Committee, the investigation that 
became known as Operation Fast and Furious started in October 2009 when ATF 
agents received a tip that four suspected straw purchasers had acquired numerous 
AK-47 style rifles from the same gun dealer. ATF also received a tip about a man 
named Uriel Patino who had purchased numerous AK-47 rifles from the same 
dealer.”^ 

The next month, ATF 
identified six additional 
suspected straw purchasers and 
two local properties that were 
being utilized as firearm drop 
locations."*’ On November 
20, 2009, some of the guns 
purchased by the suspects 
were recovered in Naco, 

Mexico, including firearms 
with a "short time to crime." 

Two additional suspects were 
identified based on the firearms 
recovered in Naco.'" 

The case continued to grow in December with the identification of seven 
additional suspected straw purchasers and Manuel Cclis-Acosta, a suspect 
connected to a large-scale Drug Enforcement Administration (DEA) investigation."*' 

A Briefing Paper prepared by ATF-Phoenix noted the size of the organization 
and the rapid pace of firearm purchases in those initial months of the investigation. 

It stated: 


ATF-Phoenix presentation on Fast and Furious 



- 33 - 



42 


It should also be noted that the pace of firearms procurement by this 
straw purchasing group from late September to early December, 2009 
defied the "normal" pace of procurement by other firearms trafficking 
groups investigated by this and other field divisions. This "blitz" was 
extremely out of the ordinary and created a situation where measures 
had to be enacted in order to slow this pace down in order to perfect a 
criminal case."’ 

The Briefing Paper stated that the investigation had identified more than 20 
individual straw purchasers, all connected to the same trafficking ring, who "had 
purchased in excess of 650 firearms (mainly AK-47 variants) for which they have 
paid cash totaling more than $350,000.00"'“ 

Prosecutors claimed no probable cause to arrest straw buyers 

According to documents obtained by the Committee, on January 5, 2010, 
ATF-Phoenix officials working on the investigation had a meeting with the lead 
prosecutor on the case, Arizona Assistant U.S. Attorney Emory Hurley. The ATF 
agents and the prosecutor wrote separate memos following the meeting reflecting 
a consensus that no probable cause existed to arrest any of the straw purchasers 
despite the significant number of firearms that had been purchased. The ATF- 
Phoenix Briefing Paper, prepared three days after the meeting, stated: 

On January 5, 2010, ASAC Gillett, GS [Group Supervisor] Voth, and 
case agent SA MacAllister met with AUSA Emory Hurley who is the 
lead federal prosecutor on this matter. Investigative and prosecutions 
strategies were discussed and a determination was made that there 
was minimal evidence at this time to support any type of prosecution; 
therefore, additional firearms purchases should be monitored and 
additional evidence continued to be gathered. This investigation was 
briefed to United States Attorney Dennis Burke, who concurs with the 
assessment of his line prosecutors and fully supports the continuation 
of this investigation.'^' 

Similarly, the prosecutor wrote a memo to his direct supervisor, stating: "We 
have reviewed the available evidence thus far and agree that we do not have any 
chargeable offenses against any of the players."'^ 

During a transcribed interview with Committee staff, the ATF-Phoenix Group 
Supervisor who oversaw the operation and participated in the meeting explained 
that he had to follow the prosecutor's probable cause assessment: 

1 don't think that agents in Fast and Furious were forgoing taking 
action when probable cause existed. We consulted with the U.S. 


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43 


Attorney's OfSice, And if we disagree, I guess we disagree. But if the 
U.S. Attorney's Office says we don't have probable cause, I think that 
puts us in a tricky situation to take action independent, especially if 
that is contradictory to their opinion.’^ 

In another exchange, the Group Supervisor explained the prosecutor's 
assessment with respect to Uriel Patino, the single largest suspected straw purchaser 
in the Fast and Furious network: 

Q: Does that meet your understanding of probable cause to 

interdict a gun when Uriel Patino goes in for the fifth or sixth 
or 12th time to purchase more and more guns with cash? 

A: We talked that over at the U.S. Attorney's Office, and the 

conclusion was that we would need independent probable 
cause for each transaction. Just because he bought 10 guns 
yesterday doesn't mean that the 10 he is buying today are 
straw purchased. You can't transfer probable cause from 
one firearm purchase to the next firearm purchase. You need 
independent probable cause for each occurrence. 

Q; And it doesn't matter not just that he bought 10 last week 
and 20 the week before, but that five of them ended up in 
Mexico at a crime scene, at a murder? 

A: Again, in talking to the U.S. Attorney's Office, unless we 

could prove that he took them to Mexico, the fact that he 
sold them or transferred them to another [non-prohibited] 
party doesn't necessarily make him a firearms trafficker. If 
he sells them to his neighbor lawfully and then his neighbor 
takes them to Mexico, it is the neighbor who has done the 
illegal act, not Patino, who sold them to his neighbor.'" 

Although the determination of whether sufficient probable cause existed 
to make arrests ultimately rested with the prosecutor, documents obtained by the 
Committee indicate that all of the participants agreed with the strategy to proceed 
with building a bigger case and to forgo taking down individual members of the 
straw purchaser network one-by-one. The ATF Briefing Paper stated: 

Currently our strategy is to allow the transfer of firearms to continue 
to take place albeit, at a much slower pace, in order to further the 
investigation and allow for the identification of additional co- 
conspirators who would continue to operate and illegally traffic 


- 35 - 



44 


firearms to Mexican DTOs [drug trafficking organizations] which are 
perpetrating armed violence along the Southwest Border.'^- 

During his transcribed interview with Committee staff. Special Agent in 
Charge Newell explained: 

[Tlhe goal was twofold. It was to identify the firearms-trafficking 
network, the decision-makers, and not just focus on the straw 
purchasers. We would go after the decision-makers, the people who 
were financing.'® 

He stated that it was critical to identify the network rather than arresting 
individual straw purchasers one-by-one: 

The goal of the investigation, as I said before, was to identify the whole 
network, knowing that if we took off a group of straw purchasers this, 
as is the case in hundreds of firearms trafficking investigations, some 
that I personally worked as a case agent, you take off the low level 
straw purchaser, all you're doing is one of - you're doing one of two 
things, one of several things. You're alerting the actual string-puller 
that you're on to them, one, and, two, all they are going to do is go out 
and get more straw purchasers. 

Our goal in this case is to go after the decision-maker, the person at the 
head of the organization, knowing that if we remove that person, in the 
sense of prosecute that person, successfully, hopefully, that we would 
have much more impact than just going after the low-level straw 
purchaser.'^'’ 

Prosecutor encouraged U.S. Attorney to "hold out for bigger" case 

In addition to finding no probable cau.sc fo arrest suspected straw 
purchasers who had already purchased hundreds of firearms, the lead prosecutor 
recommended against employing traditional investigative tactics against the 
suspects. In a memorandum to his supervisor on January 5, 2010, Mr. Hurley wrote: 

In the past, ATF agents have investigated cases similar to this by 
confronting the straw purchasers and hoping for an admission that 
might lead to charges. This carries a substantial risk of letting the 
members of the conspiracy know that they are the subject of an 
investigation and not gain any u.seful admissions from the straw buyer. 

In the last couple of years, straw buyers appear to be well coached 
in how to avoid answering question about firearms questions. Even 
when the straw buyers make admissions and can be prosecuted, they 


- 36 - 



45 


are easily replaced by new straw buyers and the flow of guns remains 
unabated.'^* 

The lead prosecutor noted that ATF-Phoenix was aware that ATP 
headquarters would likely object to both the strategy of trying to build a bigger case 
and the proposal to forgo using traditional law enforcement tactics: 

ATP [Phoenix] believes that there may be pressure from ATP 
headquarters to immediately contact identifiable straw purchasers 
just to see if this develops any indictable cases and to stem the flow 
of guns. Local ATP favors pursuing a wire and surveillance to build 
a case against the leader of the organization. If a case cannot be 
developed against the hub of the conspiracy, he will be able to replace 
the spokes as needed and continue to traffic firearms, I am familiar 
with the difficulties of building a case only upon the interviews of a 
few straw purchasers and have seen many such investigations falter 
at the first interview. 1 concur with Local ATP's decision to pursue a 
longer term investigation to target the leader of the conspiracy.'® 

Later the same day, January 5, 2010, the lead prosecutor's supervisor 
forwarded the memorandum to U.S. Attorney Dennis Burke, recommending that he 
agree to both the strategy and tactics. The supervisor's email to Mr. Burke stated; 

Dennis— Joe Lodge has been briefed on this but wanted to get you 
a memo for your review. Bottom line - we have a promising guns 
to Mexico case (some weapons already seized and accounted for), 
local ATP is on board with our strategy but ATP headquarters may 
want to do a smaller straw purchaser case. We should hold out for 
the bigger case, try to get a wire, and if it fails, we can always do the 
straw buyers. Emory's memo references that this is the "Naco, Mexico 
seizure case" — you may have seen photos of that a few months ago.'® 

Mr. Burke responded two days later with a short message; "Hold out for 
bigger. Let me know whenever and w/ whomever 1 need to weigh-in. 

Although Mr. Burke agreed with the proposal to target the organizers of the 
firearms trafficking conspiracy, he told Committee staff that neither ATF-Phoenix 
nor his subordinates suggested that agents would be letting guns walk as part of the 
investigation. As discussed in Section C, below, Mr. Burke stated in his transcribed 
interview that he was under the impres.sion that ATF-Phoenix was coordinating 
interdictions with Mexican officials. Mr. Burke stated: 

I was under the opposite impression, which was that based on his [Mr. 
Newell's] contacts and the relationships with Mexico and what they 


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46 


were doing, that they would be working with Mexico on weapons 
transferred into Mexico. 

According to documents obtained by the Committee, Mr. Burke also received 
explicit assurances from the lead prosecutor on the case, Mr. Hurley, that ATF- 
Phoenix agents "have not purposely let guns 'walk.'"*” 

ATF-Phoenix sought funding and wiretaps to target higher-level 
suspects 

To secure additional resources for Operation Fa.st and Furious, including 
agents, funding, and sophisticated investigative tools, ATF-Phoenix requested 
funding from the Organized Crime Drug Enforcement Task Forces (OCDETF) 
Program, which provides funding "to identify, disrupt, and dismantle the most 
serious drug trafficking and money laundering organizations and those primarily 
responsible for the nation's drug supply."*^* 

In January 2010, ATF-Phoenix submitted an investigativ'e strategy in its 
application for funding from OCDETF. ATF-Phoenix and the U.S. Attorney's 
Office used evidence gathered from another agency's investigation to draft its 
proposal.'^" The application explained that the goal Operation Fast and Furious was 
to bring down a major drug trafficking cartel: 

The direct goal of this investigation is to identify and arrest members 
of the CONTRERAS DTO [Drug Trafficking organization] as well as 
seize assets owned by the DTO. Based upon the amount of drugs 
this organization distributes in the US it is anticipated that the 
investigation will continue to expand to other parts of the US and 
enable enforcement operations in multiple jurisdictions. In addition 
to the CONTRERAS DTO, this investigation is intended to identify 
iind expand to the hierarchy within the Mexico-based drug trafficking 
organization that directs the CONTRERAS DTO.”*’ 

ATF-Phoenix's proposal for Operation "The Fast and the Furious" was 
approved by an interagency group of Federal law enforcement officials in Arizona in 
late January 2010.'” 

ATF-Phoenix also drafted a proposal to conduct a wiretap with the goal of 
obtaining evidence to connect the straw purchasers to the leaders of the firearms 
trafficking conspiracy.*” During his transcribed interview with Committee staff, U.S. 
Attorney Burke explained the purpose behind this wiretap application: 

[Tlhe belief was, at least in I think January 2010, was when they first, 
my recollection is that they first started referencing the interest in 


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47 


getting the [wiretap]. But the point being that they were going to try to 
reach beyond just the straw purchasers and figure out who the actual 
recruiters were and organizers of the gun trafficking ring.'® 

ATF-Phoenix submitted its wiretap application with the necessary affidavits 
and approvals from the Department of Justice, Office of Enforcement Operations, 
and received federal court approval for its first wiretaps. 

ATF-Phoenix agents watched guns walk 

Documents obtained by the Committee indicate that while ATF-Phoenix 
and the U.S. Attorney's Office pursued their strategy of building a bigger case 
against higher-ups in the firearms trafficking conspiracy, ATF-Phoenix field agents 
continued daily surveillance of the straw purchaser network. With advance or real- 
time notice of many purchases by the cooperating gun dealers, the agents watched 
as the network purchased hundreds of firearms. One ATF-Phoenix agent assigned 
to surveillance described a common scenario: 

[A] situation would arise where a known individual, a suspected straw 
purchaser, purchased firearms and immediately transferred them or 
shortly after, not immediately, shortly after they had transferred them 
to an unknown male. And at that point I asked the case agent to, if we 
can intervene and seize those firearms, and I was told no.'® 

When asked about the number of firearms trafficked in a given week, one 
agent amswered: 

Probably 30 or 50. It wasn't five. There were five at a time. These 
guys didn't go to the FFLs unless it was five or more. And the only 
exceptions to that are sometimes the Draco, which were the AK-variant 
pistols, or the FN Five-seveN pistols, because a lot of FFLs just didn't 
have ... 10 or 20 of those on hand.'® 

Agents told the Committee that they became increasingly alarmed as this 
practice continued, which they viewed as a departure from both protocol and their 
expectations as law enforcement officials. One agent stated: 

We were walking guns. It was our decision. We had the information. 

We had the duty and the responsibility to act, and wo didn't do so. 

So it was us walking those guns. We didn't watch them walk, we 
walked.'® 


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48 


ATF Deputy Director Hoover ordered an "exit strategy" 

The documents obtained and interviews conducted by the Committee 
indicate that, following a briefing in March 2010, ATF Deputy Director William 
Hoover ordered an "exit strategy" in order to extract ATF-Phoenix from this 
operation. At the March briefing, the ATF Intelligence Operations Specialist and 
the Group Supervisor made a presentation regarding Operation Fast and Furious 
that covered the suspects, the number of firearms each had purchased, the amount 
of money each had spent, the known stash houses where guns were deposited, 
and the locations in Mexico where Fast and Furious firearms had been recovered. 
The briefing also included Assistant Director for Field Operations Mark Chait and 
Deputy Assistant Director for Field Operations William McMahon, four ATF Special 
Agents in Charge from ATF's Southwest border offices, and others. 

In his transcribed interview with Committee staff. Deputy Director Hoover 
stated that he became concerned sometime after the briefing about the number of 
guns being purchased and ordered an "exit strategy" to dose the case and seek 
indictments within 90 days: 

Q: It's our understanding that you and Mr. Chait, in March 

approximately, asked for an exit strategy for the case? 

A: That is correct. ... 

Q: And if you could tell us what led to that request? 

A: We received a pretty detailed briefing in March, I don't 

remember the specific date, Tm going to say it's after the 
15th of March, about the investigation, about the number 
of firearms purchased by individuals. ... That would have 
been by our Intel division in the headquarters. ... During 
that briefing I was, you know, just jotting some notes. And I 
was concerned about the number of firearms that were being 
purchased in this investigation, and 1 decided that it was 
time for us to have an exit strategy and I asked for an exit 
strategy. It was a conversation that was occurring between 
Mark Chait, Bill McMahon and myself. And 1 asked for the 
exit strategy 30, 60, 90 days, and I wanted to be able to shut 
this investigation down. 

Q: And by shutting the investigation down, you were interested 

in cutting off the sales of weapons to the suspects, correct? 

A: That's correct. 


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49 


Q: And you were worried, is it fair to say, that these guns were 

possibly going to be getting away and getting into Mexico 
and showing up at crime scenes? 

A: I was concerned not only that that would occur in Mexico, 

but also in the United States.”'^ 

Other than requesting an exit strategy, Mr. Hoover did not recall making any 
other specific demands because he generally "allowed field operations to run that 
investigation." 

ATF-Phoenix did not follow the 90-day exit strategy and continued 
the operation 

In April 2010, more than one month after Deputy Director Hoover's demand 
for an exit strategy, ATF-Phoenix still had not provided it, and Special Agent in 
Charge Newell expressed his frustration with perceived interference from ATF 
headquarters that he believed could prevent him from making a larger case. In an 
April 27, 2010, email to Deputy Assistant Director McMahon, he wrote: 

I don't like HQ driving our cases but understand the "sensitivities" 
of this case better than anyone. We don't yet have the direct link to 
a DTO that we want/need for our prosecution, [redacted]. Once we 
establish that link we can hold this ca.se up as an example of the link 
between narcotics and firearms trafficking which would be great on a 
national media scale but if the Director wants this case shut down then 
so be it.’*’ 

Although Mr. Newell delivered an exit strategy that day at Mr. McMahon's 
reminder, the operation continued to grow and expand rather than wind down over 
the months to follow.'“ In June 2010, three months after Deputy Director Hoover's 
directive, the operational phase of the case was still continuing. On June 17, 2010, 
the ATF-Phoenix Group Supervisor received an email from a cooperating gun dealer 
raising concerns about how the firearms he was selling could endanger public safety. 
The dealer stated: 

As per our discussion about over communicating I wanted to share 
some concerns that came up. Tuesday night I watched a segment of 
a Fox News report about firearms and the border. The segment, if 
the information was correct, is disturbing to me. When you, Emory 
and I met on May 13'*' I shared my concerns with you guys that 1 
wanted to make sure that none of the firearms that were sold per our 
conversation with you and various ATF agents could or would ever 
end up south of the border or in the hands of the bad guys. I guess I 


- 41 - 



50 


am looking for a bit of reassurance that the guns are not getting south 
or in the wrong hands. I know it is an ongoing investigation so there 
is limited infomiation you can share with me. But as 1 said in our 
meeting, I want to help ATF with its investigation but not at the risk of 
agents safety because I have some very close friends that are US Border 
Patrol agents in southern AZ as well as my concern for all the agents 
safety that protect our country.”’ 

A month later, on July 14, 2010, Special Agent in Charge Newell sent an email 
to an ATF colleague in Mexico stating that ATF was "within 45-60 days of taking 
this [Operation Fast and Furious] down IF the USAO goes with our 846/924(c) 
conspiracy plan."'® At that time, the case was still months away from indictment. 

In August 2010, the operation continued, with another cooperating gun dealer 
writing to the ATF-Phoenix Group Supervisor seeking advice about a large purchase 
order made by Uriel Patino, who personally purchased more than 600 assault 
weapons from a small handful of cooperating gun dealers. The dealer stated: 

One of our associates received a telephone inquiry from Uriel Patino 
today. Uriel is one of the individuals your office has interest in, and he 
looking to purchase 20 FN-FNX mm firearms. We currently have 4 of 
these firearms in stock. If we are to fulfill this order we would need to 
obtain the additional 16 specifically for this purpose. 

1 am requesting your guidance as to weather [sic] or not we should 
perform the transaction, as it is outside of the standard way we have 
been dealing with him.'-” 

The Group Supervisor wrote back requesting that the gun dealer fulfill the order: 

[0]ur guidance is that we would like you to go through with Mr. 

Patino's request and order the additional firearms he is requesting, 
and if possible obtain a partial down payment. This will require 
further coordination of exact details but again we (ATF) are very much 
interested in this transaction and appreciate your [] willingness to 
cooperate and assist us.'” 

During a transcribed interview with Committee staff, another cooperating 
gun dealer explained that ATF agents had promised to address the concerns he 
raised about their capability to interdict these weapons: 

I was assured in no uncertain terms— and let me be straight about this. 

She assured that they would have enough agents on sight to surveil the 
sale and make sure that it didn't get away from them, as it was stated 


- 42 - 



51 


to me. ... To continue, we went along with these sales at their request. 

ATF would want us to continue with them, and we did so.’’^ 

Indictments delayed for months 

By August 2010, rather than indicting the suspects in Operation Fast and 
Furious, ATF-Phoenix and the prosecutor were still in the process of compiling 
evidence to make indictment decisions. During his transcribed interview with 
Committee staff. Special Agent in Charge Newell stated: 

Well, the next phase in the investigation, it really moves from an 
investigation phase to prosecution phase at that point in the sense 
of getting the case ready for indictment. So I know that the case 
agent ... as well as the others were meeting regularly with the AUSA 
Emory Hurley, compiling all the different pieces of evidence specific 
to each individual prospective defendant, to get to a point where we 
met what we felt in conjunction with the U.S. Attorney's Office, in 
coordination with them, that met the burden of proof to be able to seek 
an indictment.'^' 

Mr. Newel! stated that he understood that this process of "compiling" 
evidence takes significant time and, as a result, "we were hoping to get indictments 
in, as I recall, I think it was maybe October, November roughly."'=^ Mr, Newell 
attributed the delay in the indictments to "a combination of workload [at the U.S. 
Attorney's Office] and the fact that there was a lot of work that needed to be done as 
far as putting the charges together,"'*'' 

In contrast, U.S. Attorney Burke informed Committee staff that the delay in 
the indictments was because ATF-Phoenix failed to produce to the prosecutor the 
completed case file until October 2010: 

There is a formal process when an agency gives us a case with their 
cover, and the actual full documentation of the case was given to us, 
our office in October 2010, and I believe it was represented that it was 
given to us in August 2010.'*' 

On January 19, 2011, ten months after Deputy Director Hoover ordered an 
exit strategy, the U.S, Attorney's Office filed an indictment against Manuel Celis- 
Acosta and 19 straw purchasers that included counts for conspiracy, dealing in 
firearms without a license, conspiracy to possess a controlled substance with intent 
to distribute, possession with intent to distribute marijuana, conspiracy to possess 
a firearm in furtherance of a drug trafficking offense, false statements in connection 
with acquisition of firearms, conspiracy to commit money laundering, money 
laundering, and aiding and abetting.'** 


- 43 - 



52 



Fast & Furious Investigation 
Firearm Recoveries 


Department of Justice, Report of Firearms Recoveries as of Indictment of Suspects (Jan. 21, 2011) 


- 44 - 





53 


B. Challenges Specific to the Arizona 
U.S. Attorney's Office 

Numerous ATF agents in Phoenix and senior ATF officials in Washington, 

D.C. informed the Committee that the U.S. Attorney's Office in Arizona historically 
has been reluctant to prosecute firearms traffickers. Due to the Federal prosecutors' 
analysis of heightened evidentiary thresholds in their district, agents reported that 
they faced significant challenges over the course of many years getting the U.S. 
Attorney's Office in Arizona to arrest, prosecute, and convict firearms traffickers. 

"Viewed as an obstacle more than a help" 

In testimony before the Committee, ATF Special Agent Peter Forcelli stated 
that within a few weeks of transferring to the Phoenix Field Division from New York 
in 2007, he noticed a difference in how Federal prosecutors in Arizona handled gun 
cases: 


In my opinion, dozens of firearms traffickers were given a pass by the 
U.S. Attorney's Office for the District of Arizona, Despite the existence 
of "probable cause" in many cases, there w'ere no indictments, no 
prosecutions, and criminals were allowed to walk free,'’’ 

Special Agent Forcelli testified that "this situation wherein the United States 
Attorney's Office for Arizona in Phoenix declined most of our firearms cases, was at 
least one factor which led to the debacle that's now known as 'Operation Fast and 
Furious.'"'® lie added that little improvement has been made to date: 

I would say, if anything, we have gone from a 'D-minus' to maybe a 
'D.' It is still far from, again, effective or far from what, you know, the 
taxpayers deserve. But it is still very bad. I mean I wouldn't say it is 
effective. ... Guns in the hands of gang members or cartel traffickers, 
that's pretty concerning.''" 

Fie added: "the U.S. Attorney's Office is kind of viewed as an obstacle more 
than a help in criminal prosecutions here in Arizona, here in the Phoenix area.''"" 

In his transcribed interview with Committee staff. Acting ATF Director 
Kenneth Melson stated that Arizona historically has been a very difficult place to 
prosecute firearms traffickers. He stated: 

A: We have had, as Peter Forcelli said, a long history with the 

District of Arizona going back to Paul Charlton, if not earlier, 
where it w'as difficult to get these cases prosecuted. Diane 


- 45 - 



54 


Humetewa was the second U.S. Attorney there who had 
issues with our cases and wouldn't prosecute. I was head of 
the Executive Office for U.S. Attorneys at the time. I knotv 
exactly what was going on there and the issues we had with 
getting cases prosecuted in the District of Arizona. 

Q: What was going on there? 

A: Well, they— 

Q: Were they prosecuting gun cases? 

A: No, no. And they had a limit— for example, they wouldn't 

take any case that had less than 500 pounds of marijuana 
coming across the border with people in custody of it. We 
had to take some of our most significant cases to the state 
courts to try because they wouldn't take them, 

Q: So is it fair to say there was a frustration— I believe you said 

earlier there was a frustration and aggravation with the 
Arizona U.S. Attorney's office, is that fair? 

A: Yes, I think there was a frustration. Peter Forcelli said it 

really like it was. Let me say it, Dennis Burke has really 
made a change in the office. And he has turned that office 
around, maybe not 180 degrees but he's getting there. 

He's at least at 45 or 50 degrees. We have gotten more 
prosecutions out of his office than before, but historically, we 
have had a real hard time getting prosecutions. And when 
we do, we get no sentences. The guidelines are so low.’*^^ 

Evidentiary thresholds in Arizona 

According to ATF officials, prosecutors in the Arizona U.S. Attorney's Office 
insisted that they could not prosecute firearms cases without physical possession 
of the firearms at issue. The prosecutors referred to this as the doctrine of corpus 
delicti ("body of the crime"). Because it was difficult to get Mexican authorities 
to cooperate in returning recovered firearms from that country, agents claimed that 
this created an effective bar to prosecution of many trafficking suspects. Agents told 
the Committee that prosecutors in the Arizona U.S. Attorney's Office applied the 
corpus delicti doctrine to refuse to prosecute cases even when suspects confessed to 
committing the crime.'® 

ATF counsel strongly disagreed with the U.S. Attorney's Office that firearms 
had to be present to prove that straw purchasers had lied on the Federal forms they 


- 46 - 



55 


filled out when purchasing firearms. According to Special Agent in Charge Newell, 
the other other U.S. Attorneys' offices in his jurisdiction — New Mexico, Colorado, 
Wyoming, and Utah— did not share Arizona's interpretation of this evidentiary 
standard. 

On February 24, 2010, ATF counsel prepared a memorandum criticizing 
the corpus delicti doctrine as interpreted by the Arizona U.S. Attorney's Office. The 
memo stated; 

In furtherance of ATF's primary investigative authority and the 
Southwest Border Initiative, ATF agents spend a very significant 
number of hours — and often place themselves in dangerous 
circumstances— investigating alleged straw transactions as part of 
firearms trafficking cases. In recent years, few of these investigations 
have resulted in Federal prosecutions in the District of Arizona. It 
is our desire to work with your office to adjust the scope of our 
investigations and/or our investigative procedures to provide straw 
purchaser cases that fall within the prosecution guidelines of your 
office.’® 

According to ATF agents in Phoenix, the U.S. Attorney's Office also 
established additional evidentiary hurdles that made prosecuting firearms cases 
difficult, including requiring independent evidence of illegality for each firearms 
transaction. According to ATF agents, prosecutors would not build a case based on 
a pattern of multiple successive firearms purchases followed in quick succession 
by trips to Mexico. Instead, agents had to prove that each transaction, standing by 
itself, was illegal. The ATF-Phoenix Group Supervisor for Fast and Furious told the 
Committee how this policy applied: 

We talked that over at the U.S. Attorney's Office, and the conclusion 
was that we would need independent probable cause for each 
transaction. Just because he bought 10 guns yesterday doesn't 
mean that the 10 he is buying today are straw purchased. You 
can't transfer probable cause from one firearm purchase to the next 
firearm purchase. You need independent probable cause for each 
occurrence.””* 

The ATF Group Supervisor explained that application of this requirement 
meant that agents could not rely on prior actions as the basis for arresting suspected 
straw purchasers or interdicting weapons.”’'* 

ATF agents also informed the Committee that the Arizona U.S. Attorney's 
Office required proof, by clear and convincing evidence, that every person in a chain 
of people who possessed the firearm had the intent to commit a crime.'™ Agents 


- 47 - 



56 


understood this to mean that they would not have sufficient probable cause to arrest 
a suspect or interdict weapons when suspects transferred guns to non-prohibited 
persons who then trafficked the guns to Mexico.''^' 



DEA photo from announcement of Fast and Furious indictments 
(January 2011) 


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57 


C. No Evidence that Senior Officials 
Authorized or Condoned Gunwalking in 
Fast and Furious 

Contrary to some claims, the Committee has obtained no evidence that 
Operation Fast and Furious was conceived and directed by high-level political 
appointees at the Department of Justice. Rather, the documents obtained and 
interviews conducted by the Committee reflect that Fast and Furious was the latest 
in a series of fatally flawed operations run by ATF's Phoenix Field Division and the 
Arizona U.S. Attorney's Office during both the previous and current administrations. 

The Acting Director of ATF, the Deputy Director of ATF, and the U.S. Attorney 
in Arizona each told the Committee that they did not approve of gunwalking in 
Operation Fast and Furious, were not aware that agents in ATF-Phoenix were using 
the tactic, and never raised any concerns with senior officials at the Department of 
Justice in Washington, D.C. In addition, the Deputy Attorney General and Assistant 
Attorney General for the Criminal Division both stated that ATF and prosecutors 
never raised concerns about gunwalking in Operation Fast and Furious to their 
attention, and that, if they had been told about gunwalking, they would have shut 
it down. The Attorney General has stated consistently that he was not aware of 
allegations of gunwalking until 2011, and the Committee has received no evidence 
that contradicts this assertion. 

i 

Attorney General Holder “ 

The Attorney General has stated repeatedly 
that he was unaware that gunwalking occurred in 
Operation Fast and Furious until the allegations 
became public in early 201 1.‘^^ In testimony before 
the Senate Judiciary Committee, Attorney General 
Holder was unequivocal in his criticism of the 
controversial tactics employed in Fast and Furious: 

Now I want to be very clear, any instance 
of so called gunwalking is simply unacceptable. 

Regrettably this tactic was used as part of Fast and Furious which was 
launched to combat gun trafficking and violence on our Southwest 
border. 

This operation was flawed in its concept and flawed in its execution, 
and unfortunately we will feel the effects for years to come as guns that 
were lost during this operation continue to show up at crime scenes 



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58 


both here and in Mexico. This should never have happened and it 
must never happen again.’’^ 

Testifying before the House Judiciary Committee, the Attorney General 
rejected the allegation that senior leaders at the Department of Justice approved of 
gunwalking in Operation Fast and Furious: 

I mean, the notion that people in the— in Washington, the leadership of 
the Department approved the use of those tactics in Fast and Furious is 
simply incorrect. This was not a top-to-bottom operation. This was 
a regional operation that was controlled by ATF and by the U.S. 

Attorney's Office in Phoenix.'” 

The Committee has obtained no evidence indicating that the Attorney General 
authorized gunwalking or that he was aware of such allegations before they became 
public. None of the 22 witnesses interviewed by the Committee claims to have 
spoken with the Attorney General about the specific tactics employed in Operation 
Fast and Furious prior to the public controversy. 

To the contrary, the evidence received by the Committee supports the 
Attorney General's assertion that the gunwalking tactics in Operation Fast and 
Furious were developed in the field. The leaders of the two components with 
management responsibility for Operation Fast and Furious— ATF and the U.S. 
Attorney's Office— informed the Committee that they themselves were not aware of 
the controversial tactics used in Operation Fast and Furious and did not brief anyone 
at Justice Department headquarters about them. Similarly, the Attorney General's 
key subordinates— the Deputy Attorney General and the Assistant Attorney General 
for the Criminal Division— informed the Committee that they were never briefed on 
the tactics by ATF or the U.S. Attorney's Office and never raised concerns about the 
operation to the Attorney General. 

In 2010, the Office of the Attorney General received six reports from the 
National Drug Intelligence Center that contained a brief, one paragraph overview of 
Operation Fast and Furious, None of the information in the documents discussed 
the controversial tactics used by ATF agents in the case. One typical paragraph read: 

From August 2 through August 6, the National Drug Intelligence 
Center Document and Media Exploitation Team at the Phoenix 
Organized Crime Drug Enforcement Task Force (OCDETF) Strike 
Force will support the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives' Phoenix Field Division with its investigation of Manuel 
Celis-Acosta as part of OCDETF Operation Fast and the Furious. This 
investigation, initiated in September 2009 in conjunction with the Drug 
Enforcement Administration, Immigration and Customs Enforcement, 


- 50 - 



59 


and the Phoenix Police Department, involves a Phoenix-based firearms 
trafficking ring headed by Manuel Celis-Acosta. Celis-Acosta and 
[redacted] straw purchasers are responsible for the purchase of 1,500 
firearms that were then supplied to Mexican drug trafficking cartels. 

They also have direct ties to the Sinaloa Cartel which is suspected 
of providing $1 million for the purchase of firearms in the greater 
Phoenix area.'” 

In his October 7, 2011, letter, the Attorney General explained that he never 
reviewed the reports and that his staff typically reviews these reports. He also 
testified that even if he had reviewed them personally, they did not indicate 
anything problematic about the case because "the entries suggest active law 
enforcement action being taken to combat a firearms trafficking organization that 
was moving weapons to Mexico,"'” 

Documents provided to the Committee indicate that in December 2010, the 
Arizona U.S. Attorney's Office was preparing to inform the Attorney General's Office 
about the general status of upcoming indictments in Operation Wide Receiver when 
news of Agent Terry's death broke. 

On December 14, 2010, Monty Wilkinson, the Attorney General's Deputy 
Chief of Staff, sent an email to U.S. Attorney Burke asking if he was available for 
a call that day.'” The next day, U.S. Attorney Burke replied, apologized for not 
responding sooner, and said he would call later in the day.'” He also stated that the 
U.S. Attorney's Office had a large firearms trafficking case he wanted to discuss that 
was set to be indicted in the coming weeks.'” 

Several hours later on December 15, 2010, U.S. Attorney Burke learned that 
Agent Terry had been murdered.'*" He alerted Mr. Wilkinson, who replied, "Tragic, 
I've alerted the AG, the Acting DAG, Lisa, etc."'*' 

Later that same day, U.S. Attorney Burke learned that two firearms found 
at Agent Terry's murder scene had been purchased by a suspect in Operation Fast 
and Furious. He sent an email to Mr. Wilkinson forwarding this information and 
wrote: "The guns found in the de.sert near the murder [sic] BP officer connect back 
to the investigation we were going to talk about— they were AK-47's purchased at a 
Phoenix gun store.""*" Mr, Wilkinson replied, "I'll call tomorrow.""*-’ 

In his interview with Committee staff, U.S. Attorney Burke stated that he did 
not recall having any subsequent conversation with Mr. Wilkinson that "included 
the fact that Fast and Furious guns were found at the scene" of Agent Terry's 
murder."*’ In a November 2011 hearing of the Senate Judiciary Committee, Senator 
Charles Grassley asked Attorney General Holder, "Did Mr. Wilkinson say anything 
to you about the connection between Agent Terry's death and the ATF operation?" 


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60 


Attorney General Holder responded, "No, he did not."”*= In a January 27, 2011, 
letter to the Committee, the Department stated that Mr. Wilkinson "does not recall a 
follow-up call with Burke or discussing this aspect of the matter with the Attorney 
General.'''“ - - 


Deputy Attorney General Grindler 


^ I would hove 
stopped it." 


-former Deputy Attorney 
General Grindler 


During his interview with Committee 
staff, Gary Grindler, the former Acting Deputy 

Attorney General stated that he was not aware of 

the controversial tactics that ATF-Phoenix employed in 

Operation Fast and Furious, never authorized them, and never briefed anyone at the 
Department of Justice about them."’’' 


In March 2010, Acting ATF Director Melson and Deputy Director Hoover met 
with Mr. Grindler for a monthly check-in meeting and shared information about 
Operation Fast and Furious and other matters. As part of this briefing, Mr. Melson 
and Mr. Hoover stated that they discussed the total number of firearms purchased 
by individual suspects in Operation Fast and Furious, the total amount of money 
spent on purchasing these firearms, and a map displaying seizure events for the case 
in both the United States and Mexico.'** 


Mr. Grindler stated that neither of ATF's senior leaders raised any concerns 
with him about Operation Fast and Furious at that briefing or mentioned 
gunwalking: 

Q: And to your recollection, did Director Melson or Deputy 

Director Hoover ever tell you that they were deliberately 
allowing firearms to be transferred to Mexico in order to use 
them as a predicate for cases in the United States? 

A: I mean, I am extraordinarily confident that they didn't tell 

me that. That is just an absurd concept. If that had been told 
to me, I would not only have written something, but done 
something about it. 

Q: What would you have done? 

A: I would have stopped it. 1 would have asked for detailed 

briefings about this matter and figure out more clearly 
what's going on here.'*’’ 

Deputy Director Hoover corroborated Mr. Grindler's account. In his 
interview with the Committee, Mr, Hoover explained that he did not inform the 


- 52 - 


61 


Deputy Attorney General about gunwalking in Operation Fast and Furious because 
he did not know about it himself: 

A: Well, there's been reports that the Deputy Attorney General's 

office was aware of the techniques being employed in Fast 
and Furious, and that's not the case, because 1 certainly 
didn't brief them on the techniques being employed in Fast 
and Furious. 

Q: Because you didn't know? 

A: Right."" 

When asked whether he ever discussed his briefing on Operation Fast and 
Furious with the Attorney General, Mr. Grindler said, "1 don't have any recollection 
of advising the Attorney General about this briefing in 2010.""' 

Acting ATF Director Melson 

In an interview with Committee staff on July 4, 2011, then-Acting ATF 
Director Kenneth Melson stated that he was not aware of the controversial tactics 
that the ATF-Phoenix Field Division employed, never authorized them, and never 
briefed anyone at the Department of Justice about them. Mr. Melson stated; 

I don't believe that I knew or that [Deputy Director] Billy Hoover 
knew that they were— that the strategy in the case was to watch 
people buy the guns and not interdict them at some point. That issue 
had never been raised. It had never been raised to our level by the 
whistleblowers in Phoenix — that stayed in-house down there. The 
issue was never raised to us by ASAC [Assistant Special Agent in 
Charge] Gillett who was supervising the case. 

It unfortunately was never raised to my level by SAC [Special Agent in 
Charge] Newell who should have known about the case, if he didn't, 
and recognize the issue that was percolating in his division about the 
disagreement as to how this was occurring. Nor was it raised to my 
level by DAD [Deputy Assistant Director] McMahon who received the 
briefing papers from [Phoenix Group Supervisor] Voth and may have 
had other information on the case. Nor was it given to me by a Deputy 
Assistant Director in OSll, the intel function, when he briefed this case 
the one time I wasn't there and he raised an objection to it and saw 
nothing change.’'” 


- 53 - 



62 


Director Melson also denied that Department of Justice or senior ATF officials 
devised or authorized those tactics: 

Q: Did you ever use or authorize agents to use a tactic of non- 

intervention to see where the guns might go? 

A: I don't believe ! did. 

Q: Did you ever tell agents not to use or authorize agents not 

to use other common investigative techniques like "knock 
and talks" or police pullovers in order to see where the guns 
might go in this case? 

A: No, 

Q: Did anyone at the Department of Justice ever tell you or 

tel! anyone else at headquarters and it got to you that those 

tactics were authorized as part of a new strategy in order to 
follow the guns, let the guns go, see where they might end 
up? 

A: No.''’’ 

Documents obtained by the Committee indicate that Mr. Melson received 
three briefings regarding Fast and Furious in the early months of the operation 
and had regular status updates thereafter. He stated that "the general assumption 
among the people that were briefed on this case was that this was like any other 
case that ATF has done.""*'' In addition to stating that he was not aware of the 
controversial tactics in Operation Fast and Furious, Mr. Melson stated that he did 
not know the full scope or scale of criminal activity by suspects until after concerns 
about gunwalking became public. 

After the public controversy broke, Mr. Melson requested copies of Operation 
Fast and Furious case files to review for himself. He told Committee staff that he 
became extremely concerned after reviewing them; 

I think I became fully aware of what was going on in Fast and Furious 
when I was reading the ROIs. And I remember sitting at my kitchen 
table reading the ROIs, one after another after another, I had pulled out 
all Patino's — and ROIs is. I'm sorry, report of investigation — and you 
know, my stomach being in knots reading the number of times he went 
in and the amount of guns that he bought. 


- 54 - 



63 


And this is why I wish the people in Phoenix had alerted us during 
this transaction to exactly this issue, so we could have had at least 
made a judgment as to whether or not this could continue or not.'® 

ATF Deputy Director Hoover 

During his interview with Committee staff, then-Deputy Director William 
Hoover stated that he had not been aware of the tactical details in Operation Fast 
and Furious and had not raised any concerns with Acting ATF Director Melson or 
anyone at Justice Department headquarters.”" Deputy Director Hoover rejected 
the suggestion that senior management officials at ATF or the Department of Justice 
were responsible for any of the controversial tactical decisions made in Operation 
Fast and Furious; 


Q: But you don't believe that this is some sort of top-down — it 

wasn't a policy or some tactical strategy from either ATF 
management or main Justice to engage in what happened 
here in Phoenix in Fast and Furious? 

A: No, sir. It's my firm belief that the strategic and tactical 

decisions made in this investigation were born and raised 
with the U.S. Attorney's Office and with ATF and the 
OCDETF strike force in Phoenix.’® 

Mr. Hoover's subordinates also informed the Committee that they did not 
warn him about gunwalking allegations in Operation Fast and Furious because they 
were unaware of them. Assistant Director for Field Operations Mark Chait told the 
Committee that he was "surprised" when he learned of allegations that gunwalking 
occurred in Operation Fast and Furious in February 2011.”* Deputy Assistant 
Director for Field Operations William McMahon, the supervisor above the Phoenix 
Field Division, stated: 

I don't think at any point did we allow guns to just go into somebody's 
hands and walk across the border. 1 think decisions were made to 
allow people to continue buying weapons that we suspected were 
going to Mexico to put our case together. But I don't believe that at any 
point we watched guns going into Mexico. I think we did everything 
we could to try to stop them from going to Mexico.'” 

Although Mr. Hoover stated that he was unaware of gunwlking allegations in 
Operation Fast and Furious prior to the public controversy, he informed Committee 
staff that he became concerned in March 2010 about the number of guns being 
purchased.^™ As discussed above, Mr. Hoover received a briefing in March 2010 
during which ATF officials described the suspects, the number of firearms, the 


- 55 - 



64 


amount of money each had spent, known stash houses, and the locations where 
firearms had been recovered. Mr. Hoover told the Committee that he ordered an 
"exit strategy" to close the case antf seek indictments within 90 days. 

Apart from whether Mr. Hoover was aware of specific gunwalking allegations 
in Operation Fast and Furious, it remains unclear why he failed to inform Acting 
ATF Director Melson or senior Justice Department officials about his more general 
concerns with the investigation or his directive for an exit strategy. 

During his interview with Committee staff. Deputy Director Hoover took 
substantial personal responsibility for ATF's actions in Operation Fast and Furious. 
He stated: 

I blame no one else. I blame no one else - not DEA, not the FBI, not the 
U.S. Attorney's Office. If we had challenges, then we need to correct 
those challenges. I am the deputy director at ATF, and, ultimately, you 
know, everything flows up, and I have to take responsibility for the 
mistakes that we made.’"' 

United States Attorney Burke 

During an interview with Committee staff, Arizona U.S. Attorney Dennis 
Burke stated that neither he nor anyone above him ever authorized non-interdiction 
of weapons or letting guns walk in Operation Fast and Furious: 

Q: To your knowledge as the U.S. Attorney for the District of 

Arizona, did the highest levels of the Department of Justice 
authorize [the] non-interdiction of weapons, cutting off of 
surveillance, as an investigative tactic in Operation Fast and 
Furious? 

A: I have no knowledge of that. 

Q: Do you believe you would have known if that was the case? 

A: Yes. 

Q: Did you ever authorize those tactics? 

A: No. 


Q: Did anyone ever discuss— from the Department of Justice 

main headquarters— your supervisors— ever discuss with 


- 56 - 



65 


you or raise to your attention that there was a new policy 
with respect to interdiction of weapons or surveillance of 
firearms? 

A; No. Not that I can recall at all. 

Q: And did anyone ever— from the Department of Justice, Main 

Justice I will call it, ever tell you that you were authorized 
to allow weapons to cross the border when you otherwise 
would have had a legal authority to seize or interdict them 
because they were a suspected straw purchase or it was 
suspected that they were being trafficked in a firearms 
scheme? 

A: I have no recollection of ever being told that.”^ 

Although U.S. Attorney Burke agreed with ATF-Phoenix's proposal to build a 
"bigger" case that targeted the organizers of the firearms trafficking conspiracy, he 
stated that ATF-Phoenix never indicated that agents would be letting guns walk as 
part of the investigation: 

Q: Did you ever discuss with him [Special Agent in Charge 

Newell] a deliberate tactic of non-interdiction to see where 
the weapons ended up? To see if they ended up with the 
DTO in Mexico? 

A: I do not recall that at all. 

Q: Would that stick out in your mind at this point if he had said 

we're going to let the guns go, find them in crime scenes in 
Mexico, and then use that to make a connection to a DTO? 

A: I don't recall that at all. 1 was under the opposite impression, 

which was that based on his contacts and the relationships 
with Mexico and what they were doing, that they would be 
working with Mexico on weapons transferred into Mexico.^*® 

Emails from Special Agent in Charge Newell touting recent seizures of 
firearms in both the United States and in Mexico are consistent with U.S. Attorney 
Burke's statement that he believed ATF-Phoenix was coordinating interdiction with 
appropriate law enforcement agencies on both sides of the border. For example, on 
June 24, 2010, Mr. Newell sent an email to Mr. Burke with a picture of a .50 caliber 
weapon that had been recovered, stating: "Never ends ... our folks are working non- 
stop around the dock 7 days a week. But they are making some great seizures and 
gleaning some great Intel."®” 


- 57 - 



66 


The lead prosecutor on the case, Emory Hurley, sent Mr. Burke similar 
updates. On August 16, 2010, for example, Mr. Hurley prepared a memorandum 
asserting that "the investigation has interdicted approximately 200 firearms, 
including two .50 caliber rifles" and stating, "[a]gents have not purposely let guns 
'walk."'‘® 


Criminal Division review of Fast and Furious wiretap applications 

In testimony before a Subcommittee of the Senate Judiciary Committee on 
November 1, 2011, Assistant Attorney General Lanny Breuer stated that he first 
became aware of the controversial tactics in Operation Fast and Furious after they 
became public: 

T found out first when the public disclosure was made by the ATF 
agents early this year. When they started making those public 
statements, of course, at that point, as you know, both the leadership of 
ATF and the leadership of the U.S. Attorney's Offices adamantly said 
that those allegations were wrong. 

But as those allegations became clear, that is when I first learned that 
guns that could — that ATF had both the ability to interdict and the 
legal authority to interdict, that they failed to do so. That is when I 
first learned that. Senator.^* 

Similarly, in an interview with Committee staff. Deputy Assistant Attorney 
General Jason Weinstein stated: 

I did not know at any time during the investigation 
of Fast and Furious that guns had walked during 
that investigation. 1 first heard of possible 
gunwalking in Fast and Furious when the 
whistleblower allegations were made public in 
early 2011. Had I known about gunwalking in Fast 
and Furious before the allegations became public, I 
would have sounded the alarm about iD“^ 

Mr. Breuer and Mr. Weinstein also rejected the allegation that they should 
have been able to identify gunwalking in Operation Fast and Furious based on the 
Criminal Division's legal reviews of wiretap applications submitted by the Arizona 
U.S. Attorney's Office. 

Federal law requires that senior Department officials approve all Federal 
law enforcement applications to Federal judges for the authority to conduct 
wiretaps.”* The Department has assigned that legal review duty to the Office of 


44 


I w mild Inn l 
sounded the 
iilci'm 

-A'mitunt Attorney 
General Brfiier 


- 58 - 



67 


Enforcement Operations in the Criminal Division.™ During Operation Fast and 
Furious, numerous wiretap applications were submitted to the Criminal Division to 
determine whether they satisfied the legal threshold established under the Fourth 
Amendment to the United States Constitution. Drafts of the applications were 
sent to the Office of Enforcement Operations, which prepared cover memos for 
final review and approval by a Deputy Assistant Attorney General.^’” The wiretap 
applications are under court seal and therefore have not been produced to the 
Committee. 

Mr. Weinstein informed the Committee that he reviewed the cover 
memoranda prepared by the Office of Enforcement Operations for three wiretap 
applications in Operation Fast and Furious and that he approved all three.’" He 
stated that his general practice was to read the cov^'er memo first and examine the 
underlying affidavit only if there were issues or questions necessary to the probable 
cause determination that the summary memo did not provide.’” Mr. Weinstein 
stated that he believed his practice was consistent with the conduct across various 
administrations.’” 

Mr. Weinstein rejected the criticism that he should have identified 
gun walking in Operation Fast and Furious based on his review of the memoranda 
summarizing the wiretap affidavits in the case. Although he could not comment 
on the contents of the documents because they are under seal by a Federal District 
Court judge, he stated; 

It's not a fair criticism. As I said earlier, I ^ 
can't comment on the contents. What I can 
say is I obviously have a sensitive radar to 
gunwalking, since that's been the focus of my 
life, my professional life, is keeping guns out 
of the hands of criminals. So when 1 saw in 
Wide Receiver that an investigation, however 
well intentioned it may have been, was being 
conducted in a way that put guns in the 
hands of criminals, I reacted pretty strongly 
to it. Had I seen anything at any time during 
the investigation of Fast and Furious that 
raised the same concerns, I would have reacted. 

And 1 would have reacted even more strongly because that would 
have meant it was still going on and that Wide Receiver was not in fact 
an isolated incidence as 1 believed it to be.’" 

In testimony before the Senate Judiciary Committee, Mr. Breuer made clear 
that his staff reviews wiretap affidavits to determine the legal sufficiency of the 


The focus of my 
life, my profes- 
'^innul life. IS ktep- 
ing guns out of 

Ihi hands af 

I nmmals. ' 
-Oi’niityAiS/'-iriiitArtoimy 

'ii'iii'ial Ueifisfe/ti 


- 59 - 





68 


request rather than to conduct oversight of investigative tactics in law enforcement 
investigations. He stated: 

[A]s Congress made dear, the role of the reviewers and the role of the 
deputy in reviewing Title 111 applications is only one. It is to ensure 
that there is legal sufficiency to make an application to go up on a wire 
and legal sufficiency to petition a Federal judge somewhere in the 
United States that we believe it is a credible request. But we cannot— 
those now 22 lawyers that 1 have who review this in Washington, and 
it used to only be 7, cannot and should not replace their judgment, nor 
can they, with the thousands of prosecutors and agents all over the 
country. 

Theirs is a legal analysis: Is there a sufficient basis to make this 
request? We must and have to rely on the prosecutors and their 
supervisors and the agents and their supervisors all over the country 
to determine that the tactics that are used are appropriate.^'^ 

Criminal Division response to Wide Receiver 

Questions have been raised about whether Mr. Breuer or Mr. Weinstein 
should have been aware of gunwalking in Operation Fast and Furious because 
they learned about similar tactics in a different case dating back to 2006 and 2007, 
Operation Wide Receiver, Documents obtained by the Committee indicate that as 
soon as they learned about gunwalking during the previous Administration, Mr. 
Breuer and Mr. Weinstein took immediate steps to register their concerns directly 
with the highest levels of ATF leadership, but they did not inform the Attorney 
General or the Deputy Attorney General. 

In March 2010, a Criminal Division supervisor sent an email to Mr, Weinstein 
regarding the Wide Receiver case stating that, “with the help of a cooperating 
FFL, the operation has monitored the sale of over 450 weapons since 2006."^"'’ In 
response, Mr, Weinstein expressed concern, writing: "Tm looking forward to 
reading the prosjccution] memo on Wide Receiver but am curious — did ATF allow 
the guns to walk, or did ATF learn about the volume of guns after the FFL began 
cooperating?"^'^ The supervisor inaccurately responded: "My recollection is 
they learned afterward."^"* As discussed above, ATF Operational Plans and other 
documents provided to the Committee show that ATF agents in Arizona were 
contemporaneously aware of the illegal straw purchases. 

The next month, Mr. Weinstein received and reviewed a copy of the 
prosecution memorandum prepared by the criminal prosecutor in the Wide Receiver 
case.^'° On April 12, 2010, Mr. Weinstein wrote to the prosecutors stating: 


- 60 - 



69 


ATF HQ should/will be embarrassed that they let this many guns 
walk — I'm stunned, based on what we've had to do to make sure not 
even a single operable weapon walked in UC [undercover] operations 
I've been involved in planning— and there will be press about thatF“ 

In his interview with Committee staff, Mr. Weinstein explained that "there 
was no question from the moment those sales were completed that ATF had a lot 
of evidence that those sales were illegal. That's pretty rare. And it's that specific 
fact that set me off on Wide Receiver."^^’ He also stated that the gunwalking tactics 
used in Wide Receiver "were unlike anything I had encountered in my career as a 
prosecutor."^^^ As a former prosecutor in the U.S. Attorney's Office in Baltimore, he 
added: 


One of my priorities in all of the work I did in Maryland was to 
stop guns from getting to criminals and get guns out of the hands of 
criminals who managed to get their hands on them. But I was very 
sensitive about any situation or any operation that might result in law- 
enforcement, however inadvertently, putting a gun into the hands of a 
criminal. And so all of the operations that 1 participated in designing, 
and I referred to this in the email, were designed to make sure that not 
even a single operable weapon got in the hands of a criminal.^-’ 

After reading the prosecution memorandum, Mr. Weinstein contacted 
his supervisor. Assistant Attorney General Breuer. On April 19, 2010, they met 
to discuss Mr. Weinstein's concerns about ATF-Phoenix's handling of the case.^^'* 
According to Mr. Weinstein, Mr. Breuer shared his shock about the gunwalking 
tactics used in Wide Receiver: 

[Tjhere's no question in my mind from his reaction at the meeting 
that Mr. Breuer shared the same concerns that 1 did. As I indicated in 
my opening, Mr, Breuer has made helping Mexico and stopping guns 
from getting to Mexico a top priority. I had commented to somebody 
in my office that I traded when I came from Baltimore to the Criminal 
Division, I traded having a boss come into my office every day and 
ask me what am I doing to keep the murder rate down, to a boss 
who is asking me virtually every day, what am I doing to stop guns 
from going to Mexico? So when he heard about this he had the same 
reaction 1 did.^^-’ 


According to Mr. Weinstein, Mr. Breuer directed him to immediately register 
their concerns "directly with the leadership of ATF."™ The next day, Mr. Weinstein 
contacted ATF Deputy Director Hoover to request a meeting.”' On April 28, 2010, 
Mr. Weinstein and Mr. Hoover met and were joined by the Acting Chief of the 
Organized Crime and Gang Section at DOJ, James Trusty and ATF Deputy Assistant 


- 61 - 



70 


Director William McMahon.^’" Mr. Weinstein told the Committee that he expressed 
his serious concerns about ATF-Phoenix's management of Wide Receiver and the 
fact that so many firearms had been allowed to walk. Notes taken at that meeting 
indicate that of 183 guns sold in the first part of Operation Wide Receiver, the "vast 
majority walkjed]" and were linked to "violent crime. Mr. Weinstein stated: 

[A]t the meeting the first topic on the agenda was to talk about the 
tactics. And so Mr. Trusty and 1 went through the facts of the case and 

1 explained my concerns about the tactics. The meeting was nearly 

2 years ago now, and as I sit here today I just can't recall the specific 
words used, but my strong memory from that meeting is that Mr. 

Hoover had the same reaction I did; that is, that he shared my concerns 
about the tactics. And I walked away from that meeting being satisfied 
that although this had happened in '06 and '07, this was not the kind 
of thing that would be happening under Mr. Hoover's watch. 1 wish 

I could remember the exact words used, but that's the strong sense I 
walked away w'ith.'-’" 

Although neither Mr. Breuer nor Mr. Weinstein had direct supervisory 
authority over ATF, Mr. Weinstein told the Committee that the seriousness of issue 
compelled them to request the meeting. Mr. Weinstein stated: 

I raised this with Mr. Hoover because 1 knew it was something he 
would be concerned about and he was concerned about it. I didn't 
direct him. It's not my place to direct him. 1 didn't ask him to do 
anything in particular. His reaction, as I said, was exactly what I 
expected, which was concern about the tactics. And so 1 just walked 
away. I walked away feeling there was no reason to worry that this 
was the kind of thing that he would tolerate.^' 

Mr. Weinstein stated that he relayed the details of the meeting to Mr. Breuer, 
and at that time both of them believed that they had satisfied their duty to address 
the issue with the appropriate managers.’^’ Mr. Weinstein also noted that he 
believed the gunwalking in Wide Receiver was an "extreme aberration from years 
ago."“ 

Despite rai.sing these concerns about gunwalking in Operation Wide Receiver 
immediately with senior ATF leadership, Mr. Breuer later expressed regret for 
not raising these concerns directly with the Attorney General or Deputy Attorney 
General. During an exchange at a hearing with Senator Grassley, Mr. Breuer stated: 

1 regret the fact that in April of 2010, 1 did not. At the time, I thought 
that we— dealing with the leadership of ATF was sufficient and 
reasonable. And frankly, given the amount of work I do, at the time. 


- 62 - 



71 


I thought that that was the appropriate way of dealing with it. But I 
cannot be more clear that knowing now — if I had known then what I 
know now, I, of course, would have told the Deputy and the Attorney 
General.^^'* 


Criminal Division interactions with Mexican Officials 

According to documents obtained by the Committee, Assistant Attorney 
General Breuer met with senior officials from the Mexican government in Mexico 
on February 2, 2011, to discuss potential areas of cooperation to fight transnational 
organized crime and drug trafficking.^^ According to a summary, the group 
discussed a wide range of issues including U.S. extradition requests to Mexico, 
firearms trafficking, and a cooperative security agreement between the United 
States, Mexico, and countries in Centra! America.^ 

With respect to combating firearms trafficking, the Mexican Undersecretary 
for North America explained that "greater coordination and flow of information 
would be helpful to combat arms trafficking into Mexico."-’’’ Mr. Breuer responded 
by telling the Mexican officials that the Department had sought to increase penalties 
for straw purchasers and desired their support for such measures. According to the 
summary, Mr. Breuer also made a suggestion about one way the two countries could 
increase coordination: 

AAG Breuer suggested allowing straw purchasers cross into Mexico 
so SSP [Mexican federal police force] can arrest and PGR [the 
Mexican Attorney General's Office] can prosecute and convict. Such 
coordinated operations between the US and Mexico may send a strong 
message to arms traffickers.”* 

Documents produced to the Committee indicate that this summary of Mr, 
Breuer's meeting was shared with Acting ATF Director Melson in anticipation of 
his February 8, 2011, meeting with the U.S. Ambassador to Mexico.”’ According 
to a summary of this latter meeting, Mr. Melson discussed with the Ambassador 
the possibility of controlled firearms deliveries, but the Department of Justice 
Attache who was also present raised concern about the "inherent risk" of such joint 
operations; 

Melson and the Ambassador discussed the possibility of allowing 
weapons to pass from the US to Mexico and US law enforcement 
coordinating with SSP and PGR to arrest and prosecute the arms 
trafficker. I raised the issue that there is an inherent risk in allowing 
weapons to pass from the US to Mexico; the possibility of the GoM 
[Government of Mexico] not seizing the weapons; and the weapons 
being used to commit a crime in Mexico.™ 


- 63 - 



72 


The documents obtained by the Committee do not indicate that any action 
was taken after this meeting regarding efforts to coordinate operations with Mexican 
authorities. 

As describeti in the section above on the Hernandez case, the memo prepared 
for Attorney General Mukasey in 2007 similarly explained that "ATF would like to 
expand the possibility of such joint investigations and controlled deliveries— since 
only then will it be possible to investigate an entire smuggling network, rather than 
arresting simply a single smuggler.^'*' The memo provided to Attorney General 
Mukasey was explicit, however, in warning that previous operations "have not been 
successful,"^'- 


- 64 - 



73 


D. Department Responses to Gunwalking 
IN Operation Fast and Furious 

Inaccurate information initially provided to Congress 

On January 27, 2011, Senator Charles Grassley wrote a letter to the 
Department of Justice relaying allegations from whistleblowers that ATF-Phoenix 
had walked guns in Operation Fast and Furious.™ On February 4, 2011, Ron Weich, 
the Assistant Attorney General for Legislative Affairs, sent a written response that 
stated; 


[T]he allegation described in your January 27 letter — that ATF 
"sanctioned or otherwise knowingly allowed the sale of assault 
weapons to a straw purchaser who then transported them into 
Mexico" — is false. ATF makes every effort to interdict weapons that 
have been purchased illegally and prevent their transportation to 
Mexico.™ 

As this report documents, it became apparent during the course of the 
Committee's investigation that this statement in the Department's letter was 
inaccurate and, on December 2, 2011, the Deputy Attorney General formally 
withdrew the Department's February 4th letter.™ On the same day, the Department 
provided the Committee with more than 1,000 pages of internal emails, notes, and 
drafts from all of the parties involved in the drafting of the February 4 letter, as well 
as a lengthy explanation of how the inaccurate information was included in the 
letter. According to the Department: 

Department personnel, primarily in the Office of Legislative Affairs, 
the Criminal Division and the Office of the Deputy Attorney General, 
relied on information provided by supervisors from the components 
In the best position to know the relevant facts: ATF and the U.S. 

Attorney's Office in Arizona, both of which had responsibility 
for Operation Fast and Furious. Information provided by those 
supervisors was inaccurate.™ 

The documents obtained by the Committee and the interviews conducted by 
Committee staff support this explanation. 

Documents obtained by the Committee indicate that, during the drafting 
of the letter, senior ATF officials insisted that ATF-Phoenix had not allowed guns 
to walk in Operation Fast and Furious. Detailed notes of a meeting with Acting 
Director Melson taken by a Department of Justice official state that ATF "didn't let 
a guns [sic] walk," and "didn't know they were straw purchasers at the time."™ 


- 65 - 



74 


Additional notes taken of a meeting with Deputy Director Hoover state that 
"ATF doesn't let guns walk," and "we always try to interdict weapons purchased 
illegally."^''® 

Both Acting ATF Director Melson and ATF Deputy Director Hoover told the 
Committee that they did not intend to mislead the Department or Congress and that 
they sincerely believed that guns had not walked in Operation Fast and Furious at 
the time the letter was drafted.™ 

The U.S. Attorney's Office in Arizona also adamantly denied allegations of 
gunwalking. On January 31, 2011, U.S. Attorney Burke wrote to senior Department 
officials that the allegations "are based on categorical falsehoods."^" Mr. Burke and 
the Chief of the Criminal Division at the U.S. Attorney's Office sent a series of emails 
over the course of that week continuing to deny the allegations and pressing for a 
strong response.""’ 

In his interview with Committee staff, U.S. Attorney Burke stated that, after 
later learning about the scope of gunwalking in Operation Fast and Furious, he 
deeply regretted conveying "inaccurate" information to senior Department officials 
drafting the February 4 response, but that it "was not intentional."""" 

The Committee was not able to interview one witness from the U.S. Attorney's 
Office, the former Criminal Chief, Patrick Cunningham. In a letter on January 19, 
2011, Mr. Cunningham's attorney informed the Committee that he was exercising his 
Fifth Amendment right against self-incrimination. The letter stated: 

1 am writing to advise you that my client is going to assert his 
constitutional privilege not to be compelled to be a witness against 
himself. The Supreme Court has held that "one of the basic functions 
of the privilege is to protect innocent men." Cruncwald v. United States, 

353 U.S. 391,421 (1957); see also Ohio v. Reiner, 532 U.S. 17 (2001) (per 
curiam). The evidence described above shows that my client is, in fact, 
innocent, but he has been ensnared by the unfortunate circumstances 
in which he now stands between two branches of government. I will 
therefore be instructing him to assert his constitutional privilege.""-’ 

During his interview with Committee staff, U.S. Attorney Burke stated that 
Mr. Cunningham adamantly denied that gunwalking occurred in Operation Fast 
and Furious."” Similarly, Deputy Assistant Attorney General Weinstein informed 
Committee staff that Mr. Cunningham continued to assert that gunwalking had not 
occurred in Operation Fast and Furious after the February 4, 2011, letter.""-’ 

Within the Criminal Division, Mr. Weinstein informed the Committee that he 
offered to assist in the drafting of the February 4 letter "to be helpful," but that he 


- 66 - 



75 


had no independent knowledge of Operation Fast and Furious and relied on ATF 
and the U.S. Attorney's Office for information. He stated: 

As the Department prepared its response, I and others in Main Justice 
were repeatedly and emphatically assured by supervisors in the 
relevant components who were in position to know the case best— that 
is the Arizona U.S. Attorney's Office and ATF leadership — that no guns 
had been allowed to walk in connection with Fast and Furious; and it 
was on that basis that the Department provided inaccurate information 
to Congress in the February 4th letter. 

Now much attention has been paid to the sentence in that letter that 
reads, "ATF makes every effort to interdict weapons that have been 
purchased illegally and prevent their transportation to Mexico," As 
the documents you've received made clear, 1 and others at Vtain Justice 
received multiple assurances from the U.S. Attorney's Office and from 
ATF that this statement, like the other information in the letter, was 
true. ... 

Given what I know now, of course, 1 wish 1 had not placed such faith in 
the assurances provided to me by the leadership of the U.S. Attorney's 
Office and ATF. But given what 1 knew then and given the strength of 
those assurances 1 believed at the time that it was entirely appropriate 
to do so. 1 trusted what was said to me and 1 firmly believed at that 
time that in fact ATF had not let guns walk in Fast and Furious. 

Obviously, time has revealed the statements made to me and others to 
be inaccurate, and that is beyond disappointing to me.“* 

Mr. Weinstein also explained why he did not raise concerns about 
gunwalking during the previous administration in Operation Wide Receiver in 2006 
and 2007. During his interview with Committee staff, he stated; 

Now some have said that because 1 knew about Wide Receiver at the 
time I assisted with the February 4th letter, 1 knew that statement to be 
untrue, and that is just not correct. Let me explain why. 

Wide Receiver was an old case in which inappropriate tactics had 
been used in the investigative phase years earlier. This occurred 
under a prior administration, under a different U.S. Attorney's Office 
management and different ATF management. Because of the repeated 
assurances 1 and others received in February 2011, from the then 
current leadership of the U.S. Attorney's Office in ATF that guns had 
not walked in Fast and Furious and from ATF that it was making 
every effort to interdict guns, I did not make any connection between 


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76 


Wide Receiver and Fast and Furious. For that reason, I simply was not 
thinking about Wide Receiver as I assisted with the February 4th letter 
which I understood to be about Fast and Furious.^’ 

Mr. Weinstein also rebutted the allegation of an intentional cover-up: 

Q: Mr. Weinstein, during the drafting of the February 4th letter, 

did you intentionally try to mislead Congress? 

A: Absolutely not. 

Q: To your knowledge, did Mr. Breuer ever try to intentionally 

mislead Congress? 

A: Absolutely not. 

Q: To your knowledge, did anyone else at Main Justice, during 

the drafting of the February 4th letter, intentionally try to 
mislead Congress? 

A: Absolutely not.’’® 

Request for IG investigation and reiteration of Department policy 

Soon after the Attorney General became aware of allegations relating 
to gunwalking in Operation Fast and Furious, he took several steps to address 
them. First, the Attorney General requested that the Inspector General investigate 
Operation Fast and Furious and the Department's response to Senator Grassley's 
letter.^® Testifying before a Senate Appropriations Subcommittee, the Attorney 
General stated: 

It is true that there have been concerns expressed by ATF agents 
about the way in which this operation was conducted, and on that I 
took those allegations, those concerns, very seriously and asked the 
Inspector General to try to get to the bottom of it. An investigation, an 
inquiry is now under way. 

I've also made clear to people in the Department that letting guns 
walk— I guess that's the term that the people use— that letting guns 
walk is not something that is acceptable. Guns are— are different than 
drug cases or cases where we're trying to follow where money goes. 

We cannot have a situation where guns are allowed to walk, and I've 
made that clear to the United States Attorneys as well as the Agents in 
Charge in the various ATF offices.^** 


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77 


On March 9, 2011, Deputy Attorney General James Cole hosted a conference 
call with Southwest Border United States Attorneys in which he reiterated the 
Department's policy against gunwalking. After the call, Mr. Cole followed up with 
an email summarizing the conversation: 

As I said on the call, to avoid any potential confusion, I want to 
reiterate the Department's policy: We should not design or conduct 
undercover operations which include guns crossing the border. If 
we have knowledge that guns are about to cross the border, we must 
take immediate action to stop the firearms from crossing the border, 
even if that prematurely terminates or otherwise jeopardizes an 
investigation.™ 

Personnel actions 

Justice Department officials have explained that, although they are awaiting 
the findings from the Inspector General's investigation before making any final 
personnel determinations, they have removed the key players in Operation Fast and 
Furious from any further operational duties. 

At the U.S. Attorney's Office for the District of Arizona, all of the key 
personnel have resigned, been removed, or been relieved of their relevant duties 
in the aftermath of Operation Fast and Furious. On August 30, 2011, Dennis Burke 
resigned as the U.S. Attorney.™ In January 2012, the Chief of the Criminal Division, 
Patrick Cunningham, resigned his position and left the U.S, Attorney's Office.“^ 

The Section Head responsible for supervising Operation Fast and Furious resigned 
his supervisory duties in the fall of 2011, and the Assistant U.S, Attorney who was 
responsible for managing Operation Fast and Furious was moved out of the criminal 
division to the civil division.^’"' 

On August 30, 201 1, the Justice Department removed Kenneth Melson as the 
acting head of ATF and reassigned him to a position as a forensics advisor in the 
Department's Office of Legal Policy.™ On October 5, 2011, ATF removed Deputy 
Director William Hoover from his position and subsequently reassigned him to a 
non-operational role.™ Also on October 5, 2011, ATF removed Assistant Director 
for Field Operations Mark Chait from his position and .subsequently placed him in 
a non-operational role as well.™ Deputy Assistant Director for Field Operations 
William McMahon was also reassigned as a Deputy Assistant in the ATF Office of 
Professional Responsibility and Security Operations on May 13, 2011, and was later 
reassigned to a non-operational position,™ 

ATF supervisors from the Phoenix Field Division have also been reassigned. 
Special Agent in Charge William Newell was reassigned to an administrative 
position as a special assistant in the ATF Office of Management.™ Assistant Special 


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78 


Agent in Charge George Gillett was reassigned as a liaison to the U.S. Marshal's 
Service.^^® The former Supervisor of Group VII, David Voth, was reassigned to ATF's 
Tobacco Divisions^’ 

Agency reforms 

On January 28, 2011, Deputy Attorney General James Cole sent a letter to 
Congress explaining that the Department was "undertaking key enhancements to 
existing Department policies and procedures to ensure that mistakes like those that 
occurred in Wide Receiver and Fast and Furious are not repeated."^'- The letter 
detailed numerous reforms, including; 

• Implementing a new Monitored Case Program to increase coordination 
between ATF headquarters and the field for sensitive investigations 
and to improve oversight; 

• Clarifying the prohibition on gunwalking and providing guidance on 
responding to a gun dealer concerns about suspicious purchasers; 

• Revising ATF's Confidential Informants Usage Policy and its 
Undercover Operations Policy and establishing committees on 
undercover operations and confidential informants; 

• Providing training to personnel in ATF's Phoenix Field Division to 
address U.S.-Mexico cross-border firearms trafficking issues, improve 
techniques and strategies, and educate agents on the applicable law; 
and 

• Restructuring ATF's Office of the Ombudsman by appointing a senior 
special agent as Chief ATF Ombudsman and adding a full-time special 
agent to handle agent complaints^” 

Deputy Attorney General Cole also outlined key improvements to ensure 
the "accuracy and completeness" of the information the Department provides to 
Congress. The Department issued a directive requiring the responding component 
to ensure that it supplies Congress with the most accurate information by soliciting 
information from employees with detailed personal knowledge of the relevant 
subject matter. Ultimate responsibility for submitting or reviewing a draft 
response to Congress is assigned to an appropriate senior manager, according to 
the new directive. Finally, the directive emphasizes the importance of accuracy 
and completeness of the information provided to Congress over the timeliness of 
responding to requests.^” 


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79 


V. RECOMMENDATIONS 


As its title indicates, the Committee on Oversight and Government Reform 
has two primary missions. Not only is it charged with conducting oversight of 
programs to root out waste, fraud, and abuse, but it is also responsible for reforming 
these programs to ensure that government works more effectively and efficiently 
for the American people. For these reasons, set forth below are ten constructive 
recommendations intended to address operational problems identified during the 
course of this investigation. 

These recommendations for both Executive and Congressional action are 
not intended to be comprehensive or exhaustive, and some already may be under 
consideration or in various stages of implementation at the Department of Justice 
and ATF. 

Strictly Enforce the Prohibition on Gunwalking Across Law Enforcement 
Agencies. Documents obtained by the Committee indicate that ATF lacked 
sufficient clarity regarding its operational policies and training for firearms 
trafficking cases. Following the public controversy over Fast and Furious, 
Acting ATF Director B. Todd Jones issued a memo strongly stating the 
Department's policy against gunwalking, and the Attorney General has used 
his position to publicly reiterate this prohibition. These measures should 
be complemented by efforts within each Federal law enforcement agency to 
establish clear operational policies with respect to suspect firearms transfers 
and provide appropriate training for field agents and supervisors. 

Improve Managetnent and Oversight of ATF Trafficking Investigations. 
Documents obtained by the Committee reveal a lack of adequate 
communication between ATF field offices and heaciquarters about significant 
trafficking investigations. In several cases, deficient communication was 
magnified by disagreements between the field and headquarters about tactics 
and strategy. ATF should improve its management of investigations by 
requiring operational approval of all significant gun trafficking investigations 
by senior ATF officials in order to ensure consistent application of ATF 
policies and procedures. 

Require "Operational Safety Strategy" in Trafficking Investigations. As 
part of its broader effort to improve management and oversight of significant 
trafficking investigations, ATF should require that each Operational Plan 
developed in the field include an Operational Safety Strategy that analyzes 
the risks to agents and the public of firearms potentially being released into 


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80 


the community and sets forth appropriate operational safeguards. Senior 
ATF officials should approve these plans in order to ensure that each specific 
operation has sufficient resources to implement the safeguards intended to 
protect agent and public safety. 

Enhance the Accessibility and Responsiveness of the ATF Ombudsman. 
Documents obtained by the Committee indicate that Operation Fast and 
Furious was one of several deeply flawed operations run by ATF's Phoenix 
Field Division since 2006. Line agents reported to the Committee that they 
made their concerns about these controversial tactics public only after raising 
them first with their supervisors, but they stated that their concerns were not 
heeded. To ensure agents' concerns are communicated to ATF leadership, 
ATF should consider ways to improve its Office of the Ombudsman to make 
it more accessible and responsive to ATF line agents. 

Conduct a Review of the U.S. Attorney'.s Office in Arizona. Documents and 
testimony received by the Committee indicate that the legal interpretations 
and prosecutorial decisions regarding firearms cases made by officials in 
the U.S. Attorney's Office in Arizona may differ substantially from those of 
other U.S. Attorneys' offices. Because it remains unclear to what extent these 
differences are the result of judicial, prosecutorial, or individual decisions, 
the Department of Justice should direct the Executive Office for United States 
Attorneys to conduct a thorough review of the Arizona U.S. Attorney's Office 
to ensure that it is doing everything it can to keep illegal guns off the streets 
and out of the hands of criminals. 

Expand the Multiple Long Gun Sales Reporting Requirement. Numerous 
law enforcement agents testified before the Committee that obtaining reports 
on multiple purchases of long guns, including AK-47 variant assault weapons 
and .50 caliber semi-automatic sniper rifles that are now the "weapons of 
choice" for international drug cartels, would provide them with timely and 
actionable intelligence to help combat firearms trafficking rings. In July 2011, 
the Department of Justice issued a rule requiring such reports for weapon 
sales in certain states. Earlier this month, a Federal District Court upheld 
the rule, finding that "ATF acted rationally."-^^ ATF should now expand the 
reporting requirement to apply to other states in which firearms trafficking 
networks are particularly active. 

Confirm or Appoint a Permanent ATF Director. Consistent and strong 
leadership is vital to strengthening ATF and ensuring that policies and 
procedures are applied consistently. For six years, however, ATF has been 
forced to contend with temporary leadership because individual senators 
have blocked the confirmation of a permanent director. The Senate should 


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81 


confirm a permanent director for ATF as soon as possible, and the President 
should consider a recess appointment if the Senate fails to do so. 

Enact a Dedicated Firearms Trafficking Statute. During the Committee's 
investigation, multiple law enforcement agents warned that there is currently 
no Federal statute that specifically prohibits firearms trafficking and, as a 
result, prosecutors often charge traffickers with "paperwork violations" 
such as dealing in firearms without a license. The agents testified that 
these cases are difficult to prove and that U.S. Attorneys' offices frequently 
decline to prosecute. They stated that a Federal statute specifically dedicated 
to prohibiting firearms trafficking would help them disrupt, defeat, and 
dismantle firearms trafficking organizations. In July 2011, Ranking Member 
Elijah Cummings and Representative Carolyn Maloney introduced legislation 
in the House to establish such a firearms trafficking statute. Senator Kirsten 
Gillibrand has introduced a similar bill in the Senate. Congress should 
consider and pass this legislation without delay. 

Provide ATF with Adequate Resources to Combat Illegal Gun Trafficking, 
Documents and testimony obtained by the Committee revealed that ATF line 
agents were drastically under-resourced, resulting in deficient surveillance of 
suspected straw purchasers and firearms traffickers. Over the past decade, 
ATF's budget has not kept pace with its law enforcement responsibilities, 
particularly in light of the exponential growth in illegal firearms trafficking to 
Mexico. Congress should appropriate the additional resources ATF needs to 
perform its mission and combat gun trafficking along the Southwest Border. 

Repeal the Prohibition Against Reporting Crime Gun Trace Data. To 
increase transparency by ATF and oversight by Congress, Congress should 
repeal the prohibition against reporting crime gun trace data and require ATF 
to provide yearly reports to Congress that include aggregate statistics about 
crime gun trace data categorized by State and Federal Firearms Licensee, 
as well as aggregate gun trace data for guns that are recovered in Mexico, 
categorized by State and Federal Firearms Licensee, This information will 
assist Congress in understanding the problem of gun trafficking along the 
Southwest Border and assessing ATF's progress in fighting it. 


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82 


Endnotes 

1 Letter from James M. Cole, Deputy Attorney General, Department of Justice, 
to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, 
effli. (Dec. 2,2011). 

2 Id. 

3 Letter from Rep. Elijah E. Cummings, Ranking Member, House Committee on 
Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform (Nov. 4, 2011). 

4 Letter from Rep. Elijah E. Cummings, Ranking .Member, House Committee on 
Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, blouse Committee on 
Oversight and Government Reform (Oct. 28, 2011). 

5 Minority Staff, House Committee on Oversight and Government Reform, 
Outgunned: Laiv Enforcement Agents Warn Congress They Lack Adequate Tools to Counter Illegal 
Firearms Trafficking (June 2011). 

6 Minority Members, House Committee on Oversight and Government 
Reform, Minority Forum on Law Enforcement Tools to Stop the Flood of Illegal Weapons (June 30, 
2011 ). 

7 Bureau of Alcohol, Tobacco, Firearms and Explosives, Analysis of Comments 
to Proposed Multiple-Sale Reporting Requirement (May 17, 2011); see also Violence Policy Center, 
Indicted: Types of Firearms and Methods of Gun Trafficking from the United States to Mexico as 
Revealed in U.S. Court Documents (Apr. 2009). 

8 Mexico Updates Death Toll in Drug War to 47,515, but Critics Dispute the Data, 
New York Times (Jan. 11, 2012); Procuradun'a General de la Republica, Base de Datos por 
Fallecimientos por Presunta Rhmlidad Delincucncial (online at www.pgr.gob.mx/temas%20 
relevantes/estadistica/estadisticas.asp) (accessed Jan. 27, 2011). 

9 Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism, 
Testimony of Lanny Breuer, Assistant Attorney General, Department of Justice, Combating 
International Organized Crime: Evaluating Current Authorities, Tools, and Resources (Nov. 1, 

2011 ). 

10 Calderon Calls for Restoring Assault Weapons Ban, The Caucus Blog, New York 
Times (May 20, 2010) (online at http://thecaucus.blogs.nytimes.eom/2010/05/20/calderon- 
calls-for-restoring-assault-weapons-ban/) (accessed Jan. 27, 2011). 

11 Department of Justice, Office of the Inspector General, Review ofATF's Project 
Gunrunner (Nov. 2010). 

12 Department of Justice, Department of Justice Agencies (online at wwvv.justice. 
gov/agencies/index -org.html) (accessed on Jan. 20, 2011). 

13 Department of Justice, Office of the Inspector General, Review ofATF's Project 
Gunrunner (Nov. 2010), 

14 Bureau of Alcohol, Tobacco, Firearms and Explosives, Phoenix Field Division 
(online at www.atf.gov/field/phoenix/) (accessed on Jan. 20, 2011). 


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83 


15 United States Attorney's Office for the District of Arizona, Office Overview 
(online at www.justice.gov/usao/az/office_overview.htm!) (accessed on Jan. 20, 2011). 

1 6 Department of Justice, Office of the Inspector General, Review ofATF's Project 
Gunrunner (Nov. 2010). 

17 Government Accountability Office, Firearm? Trafficking: U.S. Efforts to Combat 
Anns Trafficking to Mexico Face Planning and Coordination Challenges (June 2009) (GAO-09- 
709). 

18 Id; Hou.se Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 

19 Department of Justice, Office of the Inspector General, Review’ of ATF's Project 
Gunrunner (Nov. 2010). 

20 Id. 

21 House Judiciary Committee, Testimony of Eric H. Holder Jr., Attorney 
General, Department of Justice, Oversight of the Justice Department (Dec. 8, 2011). 

22 Department of Justice, Office of the Inspector General, Review of ATF's Project 
Gunrunner (Nov. 2010). 

23 Id. 

24 Congressional Research Service, Gun Traff^icking and the Southwest Border 
(Sept. 21, 2009) (R40733). 

25 Department of Justice, Office of the Inspector General, Review ofATF's Project 
Gunrunner (Nov. 2010). 

26 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (June 22, 2006). 

27 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (July 2, 2007). 

28 Memorandum from Jennifer Maldonado and David Petermann, Assistant 
U.S. Attorney!?, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S, Attorney, 
District of Arizona ( July 13, 2006), 

29 Id. 

30 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin 
Carwile, Criminal Division, Department of Justice (Mar, 16, 2010). 

31 Memorandum from Jennifer Maldonado and David Petermann, Assistant 

U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S, Attorney, 
District of Arizona (July 13, 2006). 

32 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (June 22, 2006). 


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84 


33 Memorandum from Jennifer Maldonado and David Petermaim, Assistant 
U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S. Attorney, 
District of Arizona (July 13, 2006). 

34 Email from Mark Latham, Bureau of Alcohol, Tobacco, Firearms and 
Explosives, to Jennifer Maldonado and David Petermann, Assistant U.S. Attorneys, U.S. 
Attorney's Office, District of Arizona (June, 20, 2006). 

35 Email from Chuck Higman, Resident Agent in Charge, Tucson Office, 
Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Louis 
Quinonez, Group Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms 
and Explosives (Mar. 31, 2006). 

36 Memorandum from Jennifer Maldonado and David Petermann, Assistant 
U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S. Attorney, 
District of Arizona (July 13, 2006). 

37 Id. 

38 hi. 

39 Email from Lynnette Kimmins, Assistant U.S, Attorney, U.S, Attorney's 
Office, District of Arizona, to Paul Charlton, U.S. Attorney, District of Arizona (July 14, 2011 ). 

40 Email from Paul Charlton, U.S. Attorney, District of Ariz.ona, to Lynnette 
Kimmins, Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona (July 14, 2011), 

41 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 
(Oct, 6, 2006). 

42 Id. 

43 Email from James Small, Bureau of Alcohol, Tobacco, Firearms and 
Explosives, to Brandon Garcia, Special Agent, Bureau of Alcohol, Tobacco, Firearms 
and Explosives (Oct. 11, 2006) (Attachment; Bureau of Alcohol, Tobacco, Firearms and 
Explosives, Surveillance of [Suspect] at Mesa Gun Show (Oct, 6, 2006)); email from Heidi 
Dunn-Adkins, Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona, to Joelyn 
Marlowe and Jennifer Maldonado, Assistant U.S. Attorneys, U.S, Attorney's Office for the 
District of Arizona (Oct. 11, 2006) (Attachment: Tucson Police Department, VCIT Activity 
Narratives 1010112006 - 1010712006 (Oct. 7, 2006)). 

44 Email from Heidi Dunn-Adkins, Assistant U.S. Attorney, U.S. Attorney's 

Office, District of Arizona, to Joelyn Marlowe and Jennifer Maldonado, Assistant U.S. 
Attorneys, U.S. Attorney's Office for the District of Arizona (Oct. 11, 2006) (Attachment: 
"VCIT Activity Narratives 1 0/01/2006 - 1 0/07/2006"). 

45 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Dec. 5, 2006). 

46 Id. 

47 Id. 

48 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 

(Feb. 23, 2007). 


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85 


49 Id. 

50 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr, 23, 2007). 

51 Id. 

52 Email from Chuck Higman, Resident Agent in Charge, Bureau of Alcohol, 

Tobacco, Firearms and Explosives, to Adam Price, Bureau of Alcohol, Tobacco, Firearms and 
Explosives, and Lieutenant Stiso, Tucson Police Department (Apr. 10, 2007). 

53 Bureau of Alcohol, Tobacco, Firearms and F,xplosives, ATF Operational Plan 
(Apr. 11, 2007). 

54 Id. 

55 Email from James Small, Bureau of Alcohol, Tobacco, Firearms and 
Explosives, to Vicki Moore, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 18, 
2007). 

56 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Divi,sion, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 23, 2007). 

57 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 
(May 7, 2007). 

58 Id. 

59 Id. 

60 Id. 

61 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (May 

22, 2007). 

62 Email from Athanasio Vlahoulis, Bureau of Alcohol, Tobacco, Firearms and 
Explosives, to Juan Delgado and Chuck Higman, Bureau of Alcohol, Tobacco, Firearms and 
Explosives, et al. (June 7, 2007). 

63 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 
(June 26, 2007). 

64 Id. 

65 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (July 2, 2007). 

66 Email from Chuck Higman, Resident Agent in Charge, Bureau of Alcohol, 

Tobacco, Firearms and Explosi\'e.s, to Larry Shiver, Regional OCDETF Coordinator, Bureau 
of Alcohol, Tobacco, Firearms and Explosives (June 26, 2007). 

67 Id. 

68 Email from Laura Gwinn, Criminal Division, Department of Justice, to Bryan 

Reeves and James Trusty, Criminal Divi.sion, Department of Justice (Sept. 28, 2009) ("Arizona 


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86 


did not yet indict the case due to the original AUSA being appointed as a magistrate judge, 
and the new AUSA apparently too busy to devote the necessary lime to putting the case 
together."). 

69 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 

70 Id. 

71 Id. 

72 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin 

Carwile and James Trusty, Criminal Division, Department of Justice (Sept. 23, 2009). 

73 Email from Laura Gwinn, Criminal Division, Department of Justice, to James 
Trusty, Criminal Division, Department of Justice (Mar. 16, 2010). 

74 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin 
Carwile, Criminal Division, Department of Justice (Mar. 16, 2010). 

75 Email from Laura Gwinn, Criminal Division, Department of Justice, to James 
Trusty, Criminal Division, Department of Justice (May 17, 2010). 

76 U.S. Attorney's Office, District of Arizona, Seven Individuals Charged with Cun- 

trafficking Crimes (Nov. 9, 2010). 

77 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans 
(Ocl. 18, 2007). 

78 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper, Cross- 
Border Firearms Operations (2011). 

79 Id. 

80 Email from Carson Carroll, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, Enforcement Program.s, to William Hoover, Assistant Director for Field 
Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 28, 2007). 

81 Id. 

82 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational 
Plans (Oct. 18, 2007). On November 27, 2007, a criminal complaint was filed against Fidel 
Hernandez and Carlos Morales-Valenzuela for the unlawful export of firearms without a 
license. Hernandez was arrested in the United States the same day. See Criminal Complaint 
(Nov. 27, 2007), United States v. Carlos Valentin Morales-Valenzuela and Fidel Hernandez, D. Ariz. 
(No. 07-06964M). 

83 Email from William Hoover, Assistant Director for Field Operations, 

Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol, 
Tobacco, Firearms and Explosives, and William Newell, Special Agent in Charge, Phoenix 
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, et al. (Oct. 4, 2007). 

84 Email from William Hoover, Assistant Director for Field Operations, 

Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol, 
Tobacco, Firearms and Explosives (Oct. 5, 2007). 


- 78 - 



87 


85 Email from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of 
Alcohol, Tobacco, Firearms and Explosives (Oct. 6, 2007). 

86 Id. 

87 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 

(Oct. 18, 2007): Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans 

(Nov. 1, 2007); Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans 
(Nov. 26, 2007). 

88 Id. 

89 Department of Justice, Meeting of the Attorney General with Mexican Attorney 
General Medina Mora (Nov. 16, 2007). 

90 Id. 

91 Id. 

92 Email from William Hoover, Assistant Director for Field Operations, 

Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol, 
Tobacco, Firearms and Explosives (Oct. 5, 2007). 

93 Email from Carson Carroll, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, to William Hoover, Assistant Director for Field Operations, Bureau of Alcohol, 
Tobacco, Firearms and Explosives (Nov. 15, 2007). 

94 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (Nov. 

26, 2007). 

95 Id. 

96 Id. 

97 Id. 

98 Email from Robert Miskell United States Attorney's Office, District of 
Arizona to Sandra Flansen, United States Attorney's Office, District of Arizona (Nov. 3, 

2009) (Attachment; "TUCSON CRIMINAL DIVISION, SIGNIFICANT CASES - September, 
2009"). 

99 Id. 

100 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (Dec. 
10, 2008). 

101 Id. 

102 Id. 

103 Id. 

104 Id. 

105 Email from Matthew Allen, Office of Investigations, Department of 
Homeland Security, to William Newell, Special Agent in Charge, Phoenix Field Division, 
Bureau of Alcohol, Tobacco, Firearms and Explosives (Aug. 12, 2008). 


- 79 - 



88 


106 Email from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Matthew Allen, Office of 
Investigations, Department of Homeland Security (Aug. 1 2, 2008). 

1 07 U.S. Attorney's Office, District of Arizona, Leaders Sentenced for Conspiracy that 
Supplied Weapons to Sinaloan Cartel (Aug. 9, 2010). 

108 Criminal Complaint (Dec. 10, 2008), United States v. Aldo Arizrnendiz, et al, D. 
Ariz. (No. 08-0185.3M). 

109 Id. 

110 Id. 

111 Id. 

112 U.S. Attorney's Office, District of Arizona, Leaders Sentenced for Conspiracy that 

Supplied Weapons to Sinaloan Cartel (Aug. 9, 2010). 

113 Id. 

114 Id.; Criminal Complaint (Dec. 10, 2008), United States v. Aldo Arizrnendiz, et al., 
D. Ariz. (No. 08-01853M). 

115 Email from George Gillett, Assistant Special Agent in Charge, Phoenix 
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell, 
Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 
Explosives (Jan. 26, 2010) (Attachment: "Operation: The Fast and the Furious"). 

116 Id. 

117 Id. 

118 Id. 

119 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper (Jan. 8, 

2010 ). 

120 Id. 

121 Id. 

122 Memorandum from Emory Hurley, Assistant U.S. Attorney, U.S. Attorney's 

Office, District of Arizona, to Mike Morrissey, Assistant U.S. Attorney, U.S. Attorney's Office, 
District of Arizona (Jan. 5, 2010). 

1 23 House Committee on Oversight and Government Reform, Transcribed 

Interview of David Voth (June 30, 2011). 

124 Id. 

125 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper (Jan. 8, 

2010). 

1 26 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Newell (June 8, 2011). 

127 Id. 


- 80 - 



89 


128 Memorandum from Emor)' Hurley, Assistant U.S. Attorney, U.S. Attorney's 
Office, District of Arizona, to Mike Morrissey, Assistant U.S. Attorney U.S. Attorney's Office, 
District of Arizona (Jan. 5, 2010). 

129 Id. 

130 Email from Mike Morrissey, Assistant U.S. Attorney U.S. Attorney's Office, 
District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Jan. 5, 2010). 

131 Email from Dennis Burke, U.S. Attorney District of Arizona, to Mike 
Morrissey Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona (Jan. 7, 2010). 

132 House Committee on Oversight and Government Reform, Transcribed 
Interview of Dennis Burke (Aug. 18, 2011). 

133 Memorandum from Emory Hurley, Assistant U.S. Attorney, U.S. Attorney's 
Office, District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Aug. 16, 
2010 ), 

134 Department of Justice, Drug Enforcement Administration, Organized Crime 
Drug Enforcement Task Forces (online at www.justice.gov/dea/programs/ocdetf.htm) 
(accessed on Jan. 27, 2012). 

135 Bureau of Alcohol, Tobacco, Firearms and Explosives, Organized Crime Drug 
Enforcement Task Force Application for Operation The Fast and the Furious (Jan. 2010). 

136 House Committee on Oversight and Government Reform, Transcribed 
Interview of William McMahon (June 28, 2011). 

137 Email from George Gillett, Assistant Special Agent in Charge, Phoenix 
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell, 
Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 
Explosives (Jan. 26, 2010) (Attachment: "Operation: The Fast and the Furious"), 

138 Email from George Gillett, Assistant Special Agent in Charge, Phoenix 
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell, 
Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 
Explosives (Jan. 26, 2010). 

139 Email from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William McMahon, 
Deputy Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and 
Explosives (Feb, 5, 2010). 

140 House Committee on Oversight and Government Reform, Transcribed 
Interview of Dennis Burke (August 18, 2011). 

141 Email from Emory Hurley, Assistant U.S. Attorney, U.S. Attorney's Office, 
District of Arizona, to Patrick Cunningham, Assistant U.S. Attorney U.S. Attorney's Office, 
District of Arizona (Feb. 22, 2010); Email from Emory Hurley, Assistant U.S. Attorney, U.S. 
Attorney's Office, District of Arizona, to Laura Gwinn, Department of Justice, Criminal 
Division (Mar. 15, 2010), 

142 House Committee on Oversight and Government Reform, Transcribed 
Interview of Olindo Casa (Apr. 28, 2011). 


- 81 - 



90 


143 House Committee on Oversight and Government Reform, Transcribed 
Interview of John Dodson (Apr. 26, 2011). 

144 House Committee on Oversight and Government Reform, Transcribed 
Interview of John Dodson (Apr. 26, 2011). 

1 45 House Committee on Oversight and Government Reform, Transcribed 
Interview of William Hoover (July 21, 2011). 

146 Id. 

147 Email from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William McMahon, 
Deputy Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and 
Explosives (Apr. 27, 2010). 

148 See e.g., Bureau of Alcohol, Tobacco, Firearms and Explosives, SWB Briefing 
Paper (June 11, 2010) (indicating that Phoenix ATF agents continued "conducting almost 
daily surveillance" of straw purchaser transactions); Email from David Voth, Group 
Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, 
to Federal Firearms Licensee (Aug. 25, 2010) (encouraging a cooperating gun dealer to 
complete a large purchase order to a suspected straw purchaser). 

149 Email from Federal Firearms Licensee to David Voth, Phoenix Field Division, 
Bureau of Alcohol, Tobacco, Firearms and Explosives (Jun. 17, 2010), 

150 Email from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to David Voth, Group 
Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives 
(July 14, 2010), 

151 Email from Federal Firearms Licensee, to David Voth, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Aug. 25, 2010). 

152 Email from David Voth, Group Supervisor, Phoenix Field Division, Bureau 
of Alcohol, Tobacco, Firearms and Explosives, to Federal Firearms Licensee (Aug. 25, 2010). 

153 House Committee on Oversight and Government Reform, Transcribed 
Interview of Andre Howard (May 18, 2011). 

154 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Newell (June 8, 2011). 

155 Id. 

156 Id. 

157 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis K. Burke (Aug, 18, 201 1). 

158 Indictment (Jan 19, 201 1 ), United States v. Jaime Avila, Jr., et al, D. Ariz. (No. 
CR-1 1-126 PHX JAT (LOA)). 

159 House Committee on Oversight and Government Reform, Testimony of Peter 
J. Forcelli, Special Agent, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 


- 82 - 



91 


Explosives, Hearing on Operation Fast and Furious: Reckless Decisions, Tragic Outcomes (June 
15,2011). 

160 Id. 

161 House Committee on Oversight and Government Reform, Transcribed 

Interview of Peter J. Forcelli (Apr. 28, 2011). 

162 Id. 

163 House Committee on Oversight and Government Reform, Transcribed 

Interview of Kenneth Melson (July 4, 2011). 

164 Id.; House Committee on Oversight and Government Reform, Transcribed 
Interview of Larry Alt (Apr. 27, 2011). Memorandum from Thomas E, Karmgard, ATF 
Division Counsel (Phoenix) to the U.S. Attorney's Office for the District of Arizona, ATF 
Division Counsel Notes Relating to "Corpus Delicti" Issue in Strain Purchaser Case (Feb. 24, 2010). 

165 House Committee on Oversight and Government Reform, Transcribed 
Interview of Peter Forcelli (Apr. 28, 2011). 

166 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Newell (June 8, 2011). 

167 Memorandum from Thomas E. Karmgard, ATF Division Counsel (Phoenix) 
to the U.S. Attorney's Office for the District of Arizona, ATF Division Counsel Notes Relating to 
"Corpus Delicti” Issue in Strazv Purchaser Case (Feb. 24, 2010). 

168 House Committee on Oversight and Government Reform, Transcribed 
Interview of David Voth (June 30, 2011). 

169 Id. 

170 Id. 

171 Id. 

172 Senate Committee on Appropriations, Subcommittee on Commerce, Justice, 
Science, and Related Agencies, Testimony of the Eric H. Holder, Jr., Attorney General 
Department of Justice, Hearing on the FY 12 Dept, of Justice Budget (Mar. 10, 2011); House 
Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney General Department 
of Justice, Oversight Hearing on the United States Department of Justice (May 3, 2011); House 
Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney General Department of 
Justice, Oversight Hearing on the United States Department of Justice (Dec, 8, 201 1 ). 

173 Senate Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney 
General Department of Justice, Hearing on Justice Department Oversight (Nov. 8, 2011). 

1 74 House Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney 
General Department of Justice, Oversight Hearing on the United States Department of Justice 
(Dec. 8, 2011). 

175 Memorandum from Michael F. Walther, National Drug Intelligence Center, 
to the Attorney General through the Acting Deputy Attorney General, Department of 
Justice, Weekly Report for July 5 through July 9, 2010 (July 5, 2010). 


- 83 - 



92 


176 Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to 
Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, et 
al (Oct. 7, 2011). 

177 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the 
Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of 
Arizona (Dec. 14, 2010). 

178 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty 
Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of 
Justice (Dec. 15, 2010). 

179 U. 

180 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty 
Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of 
Justice (Dec. 15, 2010). 

181 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the 
Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of 
Arizona (Dec. 15, 2010). 

182 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty 
Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of 
Justice (Dec. 15, 2010). 

183 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the 
Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of 
Arizona (Dec. 15, 2010). 

184 House Committee on Oversight and Government Reform, Transcribed 
Interview of Dennis Burke (Dec. 13, 2011). 

185 Senate Committee on the Judiciary, Testimony of Eric H. Holder, Jr., Attorney 
General, Department of Justice, Hearing on Oversight of the U.S. Department of justice (Nov. 8, 
2011 ). 

186 Letter from Ronald Weich, Assistant Attorney General, Office of Legislative 
Affairs, Department of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, et at. (Jan. 27, 2012). 

187 House Committee on Oversight and Government Reform, Transcribed 
Interview of Gary Grindlcr (Dec. 14, 2011), 

188 House Committee on Oversight and Government Reform, Transcribed 
Interview of Kenneth Melson (July 4, 2011); House Committee on Oversight and 
Government Reform, Transcribed Interview of William Hoover (July 21, 2011). 

189 House Committee on Oversight and Government Reform, Transcribed 
Interview of Gary Grindler (Dec. 14, 2011). 

190 House Committee on Oversight and Government Reform, Transcribed 
Interview of William Hoover (July 21, 2011). 

191 House Committee on Oversight and Government Reform, Transcribed 
Interview of Gary Grindler (Dec. 14, 2011). 


- 84 - 



93 


192 House Committee on Oversight and Government Reform, Transcribed 

Interview of Kenneth Melson (July 4, 2011), 

193 Id. 

194 Id. 

195 Id. 

196 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Hoover (July 21, 2011). 

197 Id. 

1 98 House Committee on Oversight and Government Reform, Transcribed 
Interview of Mark Chait (July 20, 201 1). 

199 House Committee on Oversight and Government Reform, Transcribed 

Interview of William McMahon (June 28, 2011). 

200 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Hoover (July 21, 2011). 

201 Id. 

202 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (Aug, 18, 2011). 

203 Id. 

204 Email from William Newell, Special Agent in Charge, Phoenix Field 
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Dennis Burke, U.S. 
Attorney, District of Arizona (June 24, 2010). 

205 Memorandum from Emory Hurley, Assistant U.S Attorney, U.S. Attorney's 
Office, District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Aug. 16, 
2010 ). 

206 Senate Committee on the Judiciary, Testimony of Lanny Breuer, Assistant 
Attorney General, Criminal Division, Department of Justice, Hearing on Combating 
International Organized Crime: Evaluating Current Authorities, Tools, and Resources (Nov. 1, 
2011 ). 

207 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 

208 18U.S.C. §2516. 

209 Julie Wuslich, Survey of Title III, United States Attorneys' Bulletin (Jan. 2007). 

210 Id. 

211 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 


212 

Id. 

213 

Id. 

214 

Id. 


- 85 - 



94 


215 Senate Committee on the Judiciary, Testimony of Lanny Breuer, Assistant 
Attorney General, Criminal Division, Department of Justice, Hearing on Combating 
International Organized Crime: Evaluating Current Authorities, Tools, and Resources, llZth Cong. 
(Nov. 1,2011). 

216 Email from Kevin Carwile, Criminal Division, Department of Justice, to 
Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of 
Justice (Mar. 16, 2010). 

21 7 Email from Jason Weinstein, Deputy Assistant Attorney General, Criminal 
Division, Department of Justice, to Kevin Carwile, Criminal Division, Department of Justice, 
(Mar. 16, 2010). 

21 8 Email from Kevin Carwile, Criminal Division, Department of Justice, to 
Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of 
Justice, (Mar. 16, 2010). 

219 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 

220 Email from Jason Weinstein, Deputy Assistant Attorney General, Criminal 
Division, Department of Justice, to James Trusty, Criminal Division, Department of Justice, et 
at. (Apr. 12, 2010). 

221 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 

222 Id. 

223 Id. 

224 Id. 

225 Id. 

226 Id. 

227 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012); email from Jason W'einstein, Deputy Assistant 
Attorney General, Criminal Division, Department to Justice, to William Hoover, Deputy 
Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 20, 2010). 

228 Email meeting request from Jason Weinstein, Deputy Assistant Attorney 
General, Criminal Division, Department to Justice, to James Trusty, Criminal Division, 
Department of Justice, et al. (Apr. 28, 2010). 

229 Handwritten Notes, Laura Sweeney, Meeting with William Hoover, Deputy 
Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, et. al. (Apr. 28, 2010). 

230 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 


231 

Id. 

232 

Id. 

233 

Id, 


- 86 - 



95 


234 Senate Judiciary Committee, Combating International Organized Crime: 
Evaluating Current Authorities, Tools, and Resources (Nov. 1, 2011), 

235 Email from Anthony Garcia, Attache to Mexico, Department of Justice, to 
Adam Lurie, Department of Justice, et al. (Feb. 4, 2011). 

236 Id. 

237 Id. 

238 Id. 

239 Email from Jason Weinstein, Deputy Assistant Attorney General, Department 

of Justice, to Adam Lurie, Department of Justice, et al. (Feb. 4, 2011). 

240 Email from Anthony Garcia, Attache to Mexico, Department of Justice, to 
Mary Rodriguez, Department of Justice, et al. (Feb. 8, 2011). 

241 Id. 

242 Id. 

243 Letter from Sen, Charles Grassley, Ranking Member, Senate Judiciary 
Committee, to Eric H. Flolder, Jr„ Attorney General, Department of Justice (Jan. 27, 2011). 

244 Letter from Ronald Welch, Assistant Attorney General, Office of Legislative 

Affairs, Department of Justice, to Sen. Charles Grassley, Ranking Member, Senate Judiciary 
Committee (Feb, 4, 2011). 

245 Letter from James M, Cole, Deputy Attorney General, Department of Justice, 
to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, 
et al. (Dec, 2, 2011), 

246 Letter from James M. Cole, Deputy Attorney General, Department of Justice, 

to Rep, Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, 

et al. (Dec. 2,2011), 

247 Handwritten Notes, Faith Burton, Special Counsel, Office of Legislative 
Affairs, Department of Justice, Meeting with Kenneth Melson, Acting Director, Bureau of 
Alcohol, Tobacco, Firearms and Explosives, et at. (Jan. 28, 2011). 

248 Handwritten Notes, Faith Burton, Special Counsel, Office of Legislative 
Affairs, Department of Justice, Meeting with William Hoover, Deputy Director, Bureau of 
Alcohol, Tobacco, Firearms and Explosives, et al. (Feb. 1, 2011). 

249 House Committee on Oversight and Government Reform, Transcribed 
Interview of Kenneth Melson (July 4, 2011); House Committee on Oversight and 
Government Reform, Transcribed Interview of William Hoover (July 21, 2011). 

250 Email from Dennis Burke, U.S. Attorney, District of Arizona, to Jason 
Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of Justice, et 
a/. (Jan. 31, 2011)." 

251 Sec, e.g., Email from Dennis Burke, U.S. Attorney, District of Arizona, to Jason 
Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of Justice, 

et al. (Feb. 2, 201 1) (requesting that the Department of Justice insert the following language 
into the Department's response to Sen. Grassley's January 27, 2011, letter: "Regarding the 


- 87 - 



96 


allegations repeated in your letter that ATF in any way "sanctioned", [sic] had knowledge 
of, or permitted weapons purchased on January 16, 2010 in Arizona to reach the Republic of 
Mexico is categorically false,"). 

252 House Committee on Oversight and Government Reform, Transcribed 
Interview of Dennis Burke (Dec. 13, 2011). 

253 Letter from Tobin Romero, Partner, Williams & Connelly LLP, Counsel, to 
Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform 
(Jan. 19, 2011). 

254 House Committee on Oversight and Government Reform, Transcribed 
Interview of Deraiis Burke (Dec, 13, 2011). 

255 House Committee on Oversight and Government Reform, Transcribed 
Interview of Jason Weinstein (Jan. 10, 2012). 

256 Id. 

257 Id. 

258 Id. 

259 Senate Committee on Appropriations, Subcommittee on Commerce, Justice, 

Science, and Related Agencies, Testimony of the Eric H. Holder, Jr., Attorney General 
Department of Justice, Hearing on the FY 12 Dept, of justice Budget (Mar. 10, 2011), 

260 Id. 

261 Email from James Cole, Deputy Attorney General, Deparhnent of Justice, 
to Angel Moreno, John Murphy, Dennis Burke, Kenneth Gonzales, and Laura Duffy, U.S. 
Attorneys (Mar. 9, 2011). 

262 ATF Chief Removed Over Border Guns Scandal, Los Angeles Times (Aug. 30, 

2011). 

263 Issa Subpoenas AZ US Attorney Criminal Division Chief, Examiner (Jan. 19, 

2012 ). 

264 ATF Chief Removed Over Border Guns Scandal, Los Angeles Times ( Aug. 30, 

201 1) ; Three ATF Officials Reassigned in Shakcup Over Fast and Furious, Main Justice (Jan, 6, 

2012) (online at www.mainjustice.eom/2012/01/06/three-atf-officials-reassigned-in-shakeup- 
over-fast-and-furious/) (accessed Jan. 27, 2012). 

265 Id. 

266 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Acting Director 

Jones Announces New Staff Assignments (Oct. 5, 2011); Tlvee ATF Officials Reassigned in Shakeup 
Over Fast and Furious, Main Justice (Jan. 6, 2012) (online at www.mainjustice.eom/2012/01/06/ 
three-atf-officials-reassigned-in-shakeup-over-fast-and-furious/) (accessed Jan. 27, 2012). 

267 Id. 

268 ATF Officials Suspended overpast and Furious, Washington Examiner (Jan. 10, 

2012 ). 


- 88 - 



97 


269 ATF Official Newell Says Whistleblowers Were Silent on Fast and Furious, Main 
Justice (Sept. 22, 201 i) (online at www.mainjustice.eom/2011/09/22/atf-official-newell-says- 
whistleblow'ers-were-silent-on-fast-and-furious/) (accessed Jan. 27, 2012). 

270 'Fast and Furious' Whistleblowers Struggle Six Months After Testifying Against 
ATF Program, Fox News (Nov. 30, 2011). 

271 Id. 

272 Letter from James M. Cole, Deputy Attorney General, Department of Justice, 
to Rep. Darrell E. Issa, Chairman, Flouse Committee on Oversight and Government Reform, 
et al. (Jan. 27,2012). 

273 Id. 

274 Id. 

275 Federal Judge Rejects Challenge to Gun Dealer Rules, Washington Post (Jan. 14, 

2012 ). 


- 89 - 



98 



ONE HUNDRED TWELFTH CONGRESS 

Congress of tijc ®nttc& States 

House of Eepresentatibes 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 
21 57 Rayburn House Office Building 
Washington, DC 20515-6143 

Measttr iZC?i2:S-a355 



Opening Statement 

Rep. Elijah E. Cummings, Ranking Member 


Hearing on “Fast and Furious: Management Failures at the Department of Justice” 


February 2, 2012 


Mr. Chairman, when the Committee started this investigation almost a year ago, you and 
I made pledges to the family of Agent Brian Terry to find out what led to the release of hundreds 
of firearms to criminal networks on both sides of the border. We pledged to follow the facts 
wherever they may lead and provide the public with answers. 

Mr. Chairman, I want to acknowledge your efforts here. Over the past year, we devoted 
incredible amounts of time, money, and energy to investigating this issue. We interviewed 22 
witnesses, including senior officials al the Department of Justice and ATF. We also reviewed 
thousands of pages of documents, and we held four lull Committee hearings on this topic. 

Because of our extensive work, we have had concrete results. The Committee has 
exposed a five-year pattern of gunwalking operations run by the Phoenix Division of ATF and 
the Arizona U.S. Attorney's Office. More importantly, we have put a stop to it. This is a 
significant accomplishment, and I commend you for it. 

In addition, we can now explain to the public how this series of reckless operations 
originated and evolved over the past five years. I ask unanimous consent to place into the record 
a report I sent to Members earlier this week. 

This 95-page report, called Fatally Flav-’ed: Five Years of Gunwalking in Arizona, 
provides a detailed and comprehensive account of what we learned in our investigation. 


It documents how suspects in 2006 and 2007 trafficked more than 450 firearms during 
Operation Wide Receiver as ATF agents who knew they had probable cause chose not to make 
arrests in order to build bigger cases. As one field agent said at the time, “We want it all.” 


It documents the Hernandez case in 2007, in which suspects purchased 200 firearms as 
ATF failed repeatedly to coordinate interdiction with Mexican officials. Despite alerting then- 
Attorney General Mukasey about these failed operations, they continued. 



99 


It documents the Medrano case in 2008, in which ATF agents watched in real time as 
suspects, who were part of a trafficking ring that bought more than 100 firearms, packed 
w'eapons into the backseat of a car and drove them across the border. 

And it documents Operation Fast and Furious, during which the same ATF Special Agent 
in Charge of the Phoenix Field Division in all three previous operations chafed against an order 
from the Deputy Director of ATF to shut down the operation. As the agent stated, “1 don’t like 
HQ driving our cases.” Instead, field agents continued to encourage gun dealers to sell firearms 
to suspects for months. 

There are several things that our investigation did not find. We found no evidence that 
agents or prosecutors in Arizona acted in bad faith. They sincerely wanted to put away gun 
traffickers and higher level targets. In pursuit of that goal, however, they lost sight of the 
predictable collateral damage of letting guns walk. 

In addition, contrary to many unsubstantiated allegations, the Committee obtained no 
evidence indicating that the Attorney General authorized gunwalking. None of the 22 witnesses 
we interviewed claimed to have spoken with the Attorney General about the tactics used in 
Operation Fast and Furious before this controversy broke. 

Mr. Chairman, although you desen'e credit for exposing these operations over the last 
five years, we part ways in what w'e should do next. You now appear intent on escalating 
controversy and promoting unsubstantiated allegations in a campaign that looks more like an 
election-year witch hunt than an even-handed investigation. 

This is the sixth time the Attorney General has testified on these issues. 

In contrast, you have never once called the former head of ATF to testify at a public 
hearing, even though ATF was the agency responsible for these reckless programs. And 
although Attorney General Holder has answered questions repeatedly, you have refused to even 
interview former Attorney General Mukasey. 

When I was just starting out in my law practice, a veteran attorney gave me some advice, 
He said, “you have to take the facts as you find them.” Now that we have the facts, I hope we 
can put aside the politics and the rhetoric and focus on concrete reforms to ensure that this never 
happens again. 


2 



100 


Mr. Cummings. This 95-page report, called Fatally Flawed: Five 
Years of Gun-Walking in Arizona, provides a detailed and com- 
prehensive account of what we learned in our investigation. It doc- 
uments how suspects in 2006 and 2007 trafficked more than 450 
firearms during Operation Wide Receiver as ATF agents, who knew 
they had probable cause, chose not to make arrests in order to 
build bigger cases. As one field agent said at the time, “We want 
it all.” 

It documents the Hernandez case in 2007 in which suspects pur- 
chased 200 firearms as ATF failed repeatedly to coordinate inter- 
diction with Mexican officials. Despite alerting then Attorney Gen- 
eral Mukasey about these failed operations, they continued. 

It documents the Medrano case in 2008 in which ATF agents 
watched in real time as suspects who were part of a trafficking 
ring that bought more than 100 firearms packed weapons into the 
back seat of a car and drove them across the border. 

It documents operation Fast and Furious, during which the same 
ATF Special Agent in charge of the Phoenix field division in all 
three previous operations chafed against an order from the Deputy 
Director of ATF to shut down the operation. As the agent stated, 
“I don’t like headquarters driving our cases.” Instead, field agents 
continued to encourage gun dealers to sell firearms to suspects for 
months. 

There are several things that our investigation did not find. We 
found no evidence that agents or prosecutors in Arizona acted in 
bad faith. They sincerely wanted to put away gun traffickers and 
higher-level targets. In pursuit of that goal, however, they lost 
sight of predictable collateral damage of letting guns walk. 

In addition, contrary to many unsubstantiated allegations, the 
committee obtained no evidence indicating that the Attorney Gen- 
eral authorized gun-walking. None of the 22 witnesses we inter- 
viewed claimed to have spoken with the Attorney General about 
the tactics used in Operation Fast and Furious before this con- 
troversy broke. 

Mr. Chairman, although you deserve credit for exposing these op- 
erations over the last 5 years, we part ways in what we should do 
next. You now appear intent on escalating controversy and pro- 
moting unsubstantiated allegations in a campaign that looks more 
like an election year witch hunt than even-handed investigation. 

This is the sixth time — the sixth time the Attorney General has 
testified on these issues. In contrast, you have never once called 
the former head of the ATF to testify at a public hearing, even 
though ATF was the agency responsible for these reckless pro- 
grams. And although Attorney General Holder has answered ques- 
tions repeatedly, you refuse to even interview former Attorney Gen- 
eral Mukasey. 

When I was just starting as a lawyer some 30-some years ago, 
the senior partner in the law firm said to me, young man, you have 
to take the facts as you find them. You cannot manufacture them. 

Now that we have the facts, I hope that we can put aside the 
politics and the rhetoric and focus on concrete reforms to ensure 
that this never, ever, never, ever happens again. 

With that, I yield back. 

Chairman ISSA. I thank the gentleman. 



101 


Now I ask unanimous consent that the majority memo and re- 
lated materials he entered in the record. 

Without objection, so ordered. 

[The information referred to follows:] 



102 


MEMORANDUM 

To: Republican Members, Committee on Oversight and Government Reform 

From: Committee Staff for Chairman Darrell Issa and Senator Charles 

Grassley, Ranking Member, Senate Judiciary Committee 

Date: February 1, 2012 

Re: Main Justice: Extensive Involvement in Operation Fast and Furious 


This memorandum provides supplemental information detailing Main Justice’s involvement in 
Operation Fast and Furious. For months, the Department blamed Fast and Furious on the U.S. 
Attorney’s Office for the District of Arizona and the Bureau of Alcohol, fobacco. Firearms, and 
Explosives (ATF) - notwithstanding the fact that they are both components of the Department of 
Justice. In fact. Main Justice had much greater knowledge of, and involvement in, Fast and 
Furious than it has previously acknowledged. A discussion of the key issues follows. 

I. The Fast and Furious Investigation Failed in its Goal 

From the beginning of the congressional investigation, ATF officials claimed that the 
goal of Operation Fast and Furious was to identify and take down an entire gun trafficking 
operation. Former Special Agent in Charge (SAC) William Newell, who served as head of 
ATF’s Phoenix Field Division during Fast and Furious, aimed to reach the highest levels of the 
criminal organization: 

The goal of the investigation . . . was to identify the whole network, 

knowing that if we took off a group of straw purchasers this, as is the case 
in hundreds of firearms trafficking investigations, some that 1 personally 
worked as a case agent, you take off the low level straw purchaser, al! 
you’re doing is one of - you’re doing one of two things, one of several 
things. You’re alerting the actual string puller that you’re on to them, one, 
and, two, all they are going to do is go out and get more straw purchasers. 

Our goal in this case is to go after the decision maker, the person at 
the head of the organization, knowing that if we remove that person, in 
the sense of prosecute that person, successfully, hopefully, that we would 
have much more impact than just going after the low level straw 
purchaser.' 

With this goal in mind, ATF purposefully failed to confront straw purchasers and interdict guns. 
Disrupting and deterring the illegal activity took a backseat to the lofty goal of dismantling the 
entire organization. SAC Newell believed the straw purchasers were only the bottom rung of a 
complex organization: 


Transcribed interview of William Nevveii, at 91-92 (June 8, 201 1) (emphasis added) [hereinafter Newel! Tr.]. 





103 


Q. Right, and in order to achieve that goal, if in order to not tip them, 
if agents wanted to be more aggressive about attempting to 
interdict and discourage ... the straw purchasing that was going on 
right in front of them that that would have been not consistent with 
the goal of the strategy as outlined in this paper, right? 

A. The goal of the investigation ... is using the straw purchasers, 
identifying the straw purchasers, to get, using information we 
gleaned from them in a sense of where they’re going, where 
they’re dropping the guns off, to identify the middlemen, to 
identify the decision makers and seize assets when appropriate, 
and we have the ability to do that, identify bank accounts, identity 
transporters, identify anything so that when we make the 
arrests, do the takedown, that we take down the whole 
organization.' 

ATF insisted that the techniques and strategies used in Operation Fast and Furious were 
necessary to take down a complicated gun trafficking operation. In reality, however, the network 
was not complex. Once believed to be an intricate web, it actually included a small cadre of 
about 40 straw purchasers - only five of whom purchased 70% of the weapons - one ringleader, 
and two cartel associates who were the link to the Sinaloa Cartel. The whole point of Fast and 
Furious - an operation that allowed nearly 2,000 guns to get into the hands of the Mexican drug 
cartels - was to identify this ringleader and these two cartel associates. 

To make matters worse, federal law enforcement officials had identified this ringleader as 
early as December 2009. On December 14, 2009, the Drug Enforcement Administration (DEA) 
contacted the ATF case agents in charge of Fast and Furious and alerted them that one of the 
telephone numbers ATF had submitted for de-confliction was related to an ongoing investigation 
in which DEA had obtained a state wiretap. A December 14, 2009 internal DEA e-mail confirms 
this contact: “We checked with ATF and they have the gun source and the courier identified. 
They have a pole cam on the gun source’s house. We scheduled a meeting tomorrow with the 
case agent to make sure we don’t inadvertently step on each olher.”^ 

ATF Group Supervisor David Voth and the case agents attended a December 15, 2009 
meeting in which DEA shared with ATF the information they had thus far acquired on the 
ringleader, Manuel Celis-Acosta."' ATF investigators also received access to a DEA wire room, 
used to monitor live wiretap intercepts, and the resulting information gleaned from the wires. A 
December 16, 2009, internal DEA e-mail recounting the meeting said: “They are going to 
OCDETF [Organized Crime Drug Enforcement Task Force] the case and work with us if a gun 
load moves. They said the best way is to try to stop the load as it goes across into Mexico which 


" Newell Tr. at 92-93 (emphasis added). 

^ E-mail from IDEA] lo [DEA] (Dec. 14, 2009). 

DEA Report of Investigation (ROl) 50, “Deconfliction Meeting with DEA Personnel on December 15, 2009." 

2 



104 


adds a whole bunch of charges. . . [W]e have the conspiracy through the wire which will help 
significantly with charging down the road.”^ 

By December 18, 2009, the case that became Fast and Furious had expanded to include 
15 interconnected straw purchasers known to have purchased 500 firearms.* These guns had a 
"time-to-crime,” the amount of time between purchase and use to commit a crime, of as little as 
one day, a typical indicator of trafficking. Such data illustrates that ATF was fully aware that the 
guns being regularly purchased by the straw buyers - transactions which ATF allowed to 
proceed - were flowing to violent criminals. 

Intercepts from the DEA wiretap provided the probable cause necessary for ATF to make 
arrests at least as early as December 2009, or, at the very least, supplied the necessary predicate 
to use other investigative techniques to disrupt the illegal activity and seize the weapons.’ For 
instance, the intercepts contained information showing that Celis-Acosta was to receive money 
to traffic the weapons. Although they were destined for Juarez, Mexico, he didn’t want to take 
them there in person.* 

ATF, however, did not act on this information. Agents could have arrested Celis-Acosta 
in December 2009 and used his arrest to work their way up the ladder to the two cartel 
associates.'^ Instead, ATF wanted to get its own federal wiretaps and create its own big case. 
This decision ensured that Fast and Furious lasted nearly a year longer, with 1,500 more guns 
being purchased - including the guns bought by Jaime Avila in January 2010 that were found at 
the murder scene of Border Patrol Agent Brian Terry. 

When ATF finally brought the ringleader, Celis-Acosta, in for his proffer after his 
indictment in January 2011, ATF learned the names of the two cartel associates.'* These were 
the “big fish” that Newell had hoped to catch as a result of Fast and Furious and the federal 
wiretaps. Because the ATF wiretaps and ATF agent surveillance had thus far failed to identify 
these associates, the proffer was the first time ATF identified these individuals. 

Shockingly, though, other federal law enforcement components of the Department of 
Justice were already aware of the two cartel associates that ATF had finally identified. Their 
names appeared frequently in DF.A call logs provided to ATF - in December 2009." 
Inexplicably, ATF failed to review all the materials DEA had provided, missing these prime 
investigative targets. 


* E-mail from [DEA] to IDEA) (Dec. 16. 2009). 

* E-mail from Kevin Simpson, Intelligence Officer, Phoenix Field {nlelligencc Group (FIG), ATF, to David Voth 
(Dec, 18.2009). 

■ Meeting with Drug Enforcement Administration and Congressional Staff (Oct. 20. 2011) [hereinafter DEA 
meeting], 

^ Federal Bureau of Investigation l-D-302 281C-AQ-63002 1-6 (Jan. 17. 2010) [hereinafter FD-302]. 

DEA Meeting, supra note 7. 

Transcribed interview with David Voth at 126-127 (June 30, 201 1). 

" DEA Meeting, supra note 7. 



105 


Additionally, DBA and the Federal Bureau of Investigation (FBI^ had jointly opened a 
separate investigation speciOcally targeting these two cartel associates.'" As early as mid- 
January 2010, both agencies had collected a wealth of information on these associates. Yet, 
ATF spent the next year engaging in the reckless tactics of Fast and Furious in attempting to 
identify them. 

During the course of this separate investigation, the FBI designated these two cartel 
associates as national security assets.'”' In exchange for one individual’s guilty plea to a minor 
count of “Alien in Possession of a Firearm,” both became FBI informants and are now 
considered to be un indictable.'^ This means that the entire goal of Fast and Furious - to target 
these two individuals and bring them to Justice- was a failure. ATF’s discovery that the primary 
targets of their investigation were not indictable was “a major disappointment.”"’ 

Nevertheless, other ATF officials have tried to claim that the cartel associates are not 
necessarily untouchable. For example. Acting Deputy ATF Director Billy Hoover expressed his 
belief that any such status was not final; 

Q. In this ongoing investigation we’ve learned that some of these guys 
may be unindictable. Have you learned that as well? 

A. No, sir. I’m not sure that’s the final answer, and I’m not sure there 
is a final answer. 

Q. So if they’re paid [informants] and they're on the payroll that 
they’re indictable? Hypothetically? 

A. Hypothetically, no one is unindictable. That’s the way I perceive 
this, no one is unindictable.'’ 

The Department of Justice has shown little concern for these troubling facts. In June 
2011, when the Deputy Attorney General became aware of the lack of information-sharing 
among these three Department components - ATF, DBA, and the FBI - and the fact that the FBI 
viewed the targets of Fast and Furious as assets, his response was simply, “We will look into it. . 
. All he said was we will have to look into it. There was very little expression.”** This reaction 
and lack of follow-through typify the serious management failures that occurred throughout all 
levels of the Department during Fast and Furious. 

Meeting with Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, and Congressional Staff at Robert F. Kennedy Building, Justice Command Center, Oct. 5, 
20t 1 i0:00 AM [hereinafter FBt MeettngJ. See also ttead Shot, Organiaed Crime Drug Enforcement Task Forces 
[hereinafter Ftead Shot). 

FBt Meeting, supra note 7. See also FD-302 supra note 8. 

FBI Meeting, supra note 7. 

” Head Shot, supra note 12. 

Transcribed inteiview of James Needles, at 30 (Nov. 4, 201 1) (going on to describe it as “very” frustrating) 
[hereinafter Needles Tr.[. 

" Transcribed Interview of William J. Hoover, at 3J (July 21, 20H) [hereinafter Hoover Tr.f 
'* Transcribed Interview of Kenneth Meison, at 1 84-185 (July 4, 201 1) [hereinafter Meison Tr.|. 

4 



106 


II. Main Justice Should Have Known Key Investigative Details 

The Department of Justice constantly references parallels between Fast and Furious and 
Operation Wide Receiver, an earlier operation conducted during the previous administration. 
Indeed, both were run out of ATF’s Phoenix Field Division, both involved cooperating gun 
dealers, and thus both provided ATF with contemporaneous notice of gun purchases. In 
addition, in both cases, the Justice Department’s Criminal Division — including Deputy Assistant 
Attorney General Jason Weinstein and Assistant Attorney General Lanny Breuer — was in a 
position to know the key investigative techniques employed. The Criminal Division briefed ATF 
headquarters on gunwalking in Operation Wide Receiver, and the Criminal Division should have 
known about the misguided tactics used in Operation Fast and Furious, outlined in documents 
the Criminal Division approved. One reason Main Justice was involved in Fast and Furious was 
new coordination between the Criminal Division and ATF. A second reason was the use of 
federal wiretaps in the case. Both of these factors are explained in more detail below. 

A. Coordination Between the Justice Department’s Criminal Division and ATF 

In early September 2009, ATF and the Criminal Division began discussions “to talk 
about ways CRM [Criminal Division] and ATF can coordinate on gun trafficking and gang- 
related initiatives.”''’* Early on in these discussions, Lanny Breuer, Assistant Attorney General 
for the Criminal Division, sent a Criminal Division prosecutor to Arizona to help the U.S. 
Attorney’s Office there to prosecute ATF cases. The first case chosen for prosecution was 
Operation Wide Receiver. E-mails produced by the Justice Department reveal that Breuer was 
“VERY interested in the Arizona gun trafficking case, and he is traveling out [to Arizona] 
around 9/21. Consequently, he asked us for a ‘briefing’ on that case before the 21®' rolls 
around.”^" The next day, Breuer’s chief of staff “mentioned the ease again, so there is clearly 
great attention/interest from the front office.”^' 

When the Criminal Division prosecutor first arrived in Arizona, she gave a senior official 
in the Criminal Division's Gang Unit her impressions of the case which Breuer was so intere-sted 
in prosecuting: 

I believe the ffl [sic][Federal Firearms Licensee] has a business but was 
selling the guns to the targets from his house. There are tapes which 1 am 
told have been translated. Case involves 300 to 500 guns (unclear to me 
why we have such a wide range; doesn’t someone know' exact number?). 

It is my understanding that a lot of these guns “walked”. Whether 
some or all of that was intentional is not know. The ausa [sic] seemed to 
think ATF screwed up by not having mechanism in place to seize weapons 
once they crossed the border. In any event I believe a small number of the 


E-mai! from Ja.son Weinstein to Lanny Breuer (Sept. 10, 2009) [HOGR 003378]. 
E-maii from James Trust) to Laura Gwinn (Sept. 2, 2009) [HOGR 003375]. 
E-mail from James Trusty to Laura Gwinn (Sept. 3, 2009) [HOGR 003376], 

5 




107 


guns have been recovered in connection with police action in mexico 
[sic]7^ 

This exchange indicates that federal prosecutors in Arizona did not prosecute the case because 
they disagreed with the misguided and unacceptable tactics used by ATF. This is consistent with 
documents provided to the Committee. Former U.S. Attorney Paul Charlton received a memo 
proposing controversial tactics during Operation Wide Receiver. Charlton has emphasized that 
he never approved the tactics."^ Subsequently, the case was never prosecuted. Breuer’s order to 
resurrect the case, however, signaled that the new leadership in the Department of Justice *ras 
willing to prosecute the case despite the use of these reckless tactics. As head of the Phoenix 
Field Division, SAC Newell saw this development - as with Operation Wide Receiver - as an 
opportunity to make a name for himself by overseeing a big case. 

Kevin Carwile, Chief of the Criminal Division’s Gang Unit, told Newell later in 
September 2009 that: 

I had one of my attys in Tucson last week reviewing the semi-dormant 
ATF gun trafficking investigation being handled out of that office. After 
our review, we have decided to take the case and the USAO has agreed. 

Newell responded favorably to Carwile: “I was informed of this yesterday. I appreciate your 
interest in the case and the assistance.”^^ With the support of the Criminal Division for 
prosecuting cases that used gunwalking tactics like those in Wide Receiver, Newell began his 
work on Operation Fast and Furious. 

Discussions at the staff level over coordinating and prosecuting gun seizures in Mexico 
continued between the Criminal Division and ATF. On December 3, 2009, the Acting ATF 
Director reached out to FJreuer about this cooperation: 

Lanny: We have decided to take a little different approach with regard to 
seizures of multiple weapons in Mexico. Assuming the guns are traced, 
instead of working each trace almost independenlly of the other traces 
from the seizure, I want to coordinate and monitor the work on all of them 
collectively as if the seizure was one case. . . We should meet again just to 
catch up on where we are in our gun trafficking issues and we could talk 
about the above idea as well. Let me know what you think.^* 

With the awareness of the Office of the Deputy Attorney General, Breuer responded: 


” E-mail from Laura Gvvinn to James Trusty (Sept. 3, 2009) (emphasis added) |HOGR 003377). 

'' Michel Marizco, Lawyer Leaves Case of Slain Border Patrol Agent, Fronikras, Nov. 7, 201 1, available at 
http://vvw'\v.fronterasdesk.org/news/20] I/nov./07/\vide-recetver-fast-lurious-gun-walking/. 

E-mail from Kevin Carwile to William Newell (Sept. 30, 2009) [HOGR 003389). 

’’ E-maii from William Newel! to Kevin Carwile (Sept. 30, 2009) ftlOGR 003389). 

E-maii from Kenneth Meison to Lanny Breuer (Dec. 3, 2009) [HOGR 003403). 

6 



108 


We think this is a terrific idea and a great way to approach the 
investigations of these seizures. Our Gang Unit will be assigning an 
attorney to help you coordinate this effort.^’ 

The Criminal Division did assign an attorney, Joe Cooley, to assist with this effort. The case 
chosen for this assistance was Operation Fast and Furious. In fact, this initiative was so 
paramount to the Criminal Division that Cooley had to rearrange his holiday plans to attend an 
important briefing on Fast and Furious.^* 

For the next three months, until mid-March 2010, Joe Cooley was involved with Fast and 
Furious, suggesting prosecutorial strategy to the lead federal prosecutor in Arizona, Emory 
Hurley, and receiving briefings on operational details. Cooley, though, was not the only 
Criminal Division attorney involved with Fast and Furious during this time period. The head of 
the division, Lanny Breuer, was also drawn in through meetings with ATF officials. 

The Criminal Division should have been far more alarmed about what it learned about 
Fast and Furious and should have halted the program in its early stages, especially in light of the 
gunvvalking in Wide Receiver. Two pivotal briefings at the beginning of 2010 revealed 
concerning details about Fast and Furious. The first of these briefings occurred on January 5, 
2010, after which Assistant Director for Field Operations Mark Chait fielded questions within 
ATF on his plan for shutting down the program. Chait, however, failed to pay this audience 
much heed, because he had a more important audience than ATF; he had just come to the 
briefing from a meeting with Lanny Breuer where they focused on weapons seizures in Mexico - 
seizures subsequently discussed in detail at the ATF meeting. 

The second detailed briefing on Fast and Furious was held at ATF headquarters on March 
5, 2010. Joe Cooley from the Criminal Division was in attendance. He had been working on 
Fast and Furious for months, serving as a constant link between ATF in Phoenix and the 
Criminal Division for Fast and Furious - a link that bypassed ATF leadership. 

Two weeks later, in mid-March 2010, the Criminal Division pulled Joe Cooley off Fast 
and Furious, Satisfied with how the U.S. Attorney’s Office was handling the prosecutor-led 
OCDETF case, the Criminal Division believed the case was in good hands. Strangely, Main 
.Justice ha.s consistently blamed the U.S. Attorney’s Office for mismanaging Fast and 
Furious. The congressional investigation has shown, though, that at the time, Main Justice 
was confident enough in the U.S. Attorney’s Office that it removed its assigned prosecutor 
from the case. 


E-mail from Lanny Breuer to Kenneth Melson (Dec. 4, 2009) [HOGR 003403J. 

E-mail from Kevin Carwilc to Jason Weinstein (Mar. 16, 20)0) [HOGR 002832], 

’’ .Meeting on “Weapons Seizures in Mexico vv/ Lanny Breuer” at Robert F. Kennedy Building. Room 2107. Jan, 5. 
2010, 10:00 AM [HOGR 001987). 


7 



109 


B. Use of Federal Wiretaps 

Around this same time, and continuing through the summer of 2010, the Criminal 
Division remained involved in Fast and Furious through its authorization of seven federal 
wiretaps. Federal wiretaps are rare in gun trafficking cases, and they are rare for ATF cases in 
general. They require the approval of the Office of Enforcement Operations, which is part of the 
Criminal Division. A Deputy Assistant Attorney General within the Criminal Division is the 
official who typically reviews an Affidavit in Support of an Application for the Interception of 
Wire Communication (Wiretap Affidavit), then signs an Authorization for Interception Order 
Application (Wiretap Authorization) which allows the agency making the application to move 
forward. 

The Wiretap Affidavits are the documents which establish the need for the wiretap and 
discuss why alternative investigative techniques are insufficient. Rich in detail, they provide a 
mother lode of information. No one in ATF leadership admitted to reading the Wiretap 
Affidavits. Similarly, political appointees at Main Justice denied reviewing the Wiretap 
Affidavits, despite being responsible for reading them in order to approve the Wiretap 
Authorization. Because of the Wiretap Affidavits, the Criminal Division at Main Justice was in 
a position to know as much about Fast and Furious as ATF. Both Justice Department and ATF 
leaders in Washington, D.C. claimed they were unaware of the gunwalking that occurred during 
Fast and Furious, yet both could have and should have reviewed the Wiretap Affidavits. Senior 
officials at Main Justice were aware of the tactics in Operation Wide Receiver and should have 
prevented them from being repeated in Fast and Furious. 

In both operations, key information flowed straight to the Criminal Division, As 
previously discussed, the Criminal Division resurrected Wide Receiver in the fall of 2009 due to 
Lanny Breuer’s keen interest in the case. The Criminal Division, and not ATF leadership, had 
the full complement of facts about Wide Receiver, since it had assumed primary responsibility 
for the case. Similarly, the Criminal Division possessed detailed information regarding Fast and 
Furious since it approved the Wiretap Authorizations, The Criminal Division failed to connect 
the cases and understand that the unacceptable tactics in Wide Receiver were being duplicated on 
a much larger scale in Fast and Furious. 

Criminal Division officials claim they were concerned about Operation Wide Receiver 
and took action to inform ATF and prevent a repeat of these misguided tactics. Their actions at 
the time, however, belie these claims. The Criminal Division held exactly one meeting with 
ATF, in April 2010, to raise concerns about Wide Receiver. At the exact same time, the 
Criminal Division was approving multiple Wiretap Authorizations in Fast and Furious based on 
specific evidence in the Wiretap Affidavits indicating the continued use of these same misguided 
tactics.™ Their failure to inform Department leadership or the Inspector General (IG) at the time 
undermines the claims that they were conscientious and dutiful upon learning that ATF had 
walked guns. 


“ Sec 1 8 U.S.C. § 25 1 0 ef seq. (for wiretap application approval, requiring, "a full and complete statement as to 
whether or not other investigative procedures have been tried and failed or why they reasonably appear to be 
unlikely to succeed if tried or to be too dangerous"). 


8 



110 


III. Jason Weinstein Knew About Illegal Activity Yet Failed To Stop It 

During his transcribed interview. Deputy Assistant Attorney General Jason Weinstein of 
the Criminal Division testified that he first became concerned about Operation Wide Receiver 
when he read a single word: “monitor.” In an attachment to a March 16, 2010, e-mail sent to 
Weinstein, a description of Operation Wide Receiver contained the following sentence: 

With the help of a cooperating FFL, the operation has monitored the sales 
of over 450 weapons since 2006.^' 

As Weinstein explained about Operation Wide Receiver; 

The piece of that that caused the greatest concern was the possibility that 
with the assistance of the cooperating FFL that they had actually 
monitored, and I took that to possibly mean that they had recorded in real 
time the sales of those guns. And so my question to Mr. Carwile is did 
they actually - was the FFL cooperating and were they monitoring the 
sales as they occurred, or did the sales happen and the FFL began 
cooperating after the fact; because the answer to that question would 
affect, at least potentially affect the analysis about whether they let guns 
go that they had the legal authority to have stopped. 

Messrs. Weinstein and Breuer have both expressed regret for failing to draw a connection 
between Operation Wide Receiver and Operation Fast and Furious. The two cases used similar 
investigative techniques, operated in the same ATF Field Division with the same Special Agent 
in Charge, and both received considerable attention from the Criminal Division in the spring of 
2010 . 


Although a direct connection existed through a common suspect in the two 
investigations, Weinstein failed to realize that the two investigations also involved the e.\act 
same tactics. As Weinstein testified, “I believed Wide Receiver to be an aberration and to be a 
case from years earlier."^^ Through the Wiretap Aflldavits, however, Weinstein had information 
available to him indicating that guns were being walked in Fast and Furious. In fact, through 
these Wiretap Affidavits Weinstein had much more information available about gunwalking used 
in Fast and Furious than he ever did in Operation Wide Receiver. Further, this information was 
available to Weinstein in May 2010, a month after he expressed major concerns with Wide 
Receiver in April, and yet he still failed to recognize that the tactic was widely used in Fast and 
Furious. 

ATF had pole cameras inside the stores of cooperating gun dealers. These cameras 
recorded, in real time, sales of weapons. Not only did ATF agents monitor these straw purchases 


E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010) (emphasis added) (HOGR 003434-003435 
Transcribed Interview of Jason Weinstein, at 95 (Jan. iO. 2012) [hereinafter Weinstein Tr.]. 

” Weinstein Tr. at 157. 


9 



Ill 


as they happened electronically, but they also monitored them in person. A March 3, 201 1 CBS 
News interview with ATF Special Agent John Dodson contained footage of ATF agents 
watching known straw purchasers walk out of a gun store and load the weapons into their 
vehicles.^'' 

Weinstein should have known from the Wiretap Affidavits that ATF agents were 
witnessing, monitoring, and recording not only these straw purchases but also the subsequent 
illegal transfer of the weapons. He also should have known from the Wiretap Affidavits that 
these weapons were being recovered in Mexico, sometimes only one day after they were 
purchased. Weinstein should have known from the Wiretap Affidavits who the straw purchasers 
were, where they met, and where they stored the guns they bought before they were transported 
to Mexico. Yet, he failed to raise the same concerns about Fast and Furious that he identified in 
Wide Receiver, 

Weinstein did not admit to being aware of all this information in his transcribed 
interview. In his testimony, Weinstein attempted to explain why he failed to recognize any 
problems in the Fast and Furious Wiretap Affidavits: 

My general practice ... is to review the summary memo in the first 
instance and to go to the affidavit only if there are issues or questions that 
are not answered by the summary memo that I need to answer in order to 
make a probable cause determination. So my practice in every ease, in 
every wiretap 1 reviewed since I came on the job, is to review the 
summary memo. And I can probably count on one hand the number of 
times when there’s been something in the memo that was poorly written, 
that left me confused about the meaning of a dirty call or a legal issue that 
caused me to have to go to the affidavit.^^ 

Weinstein admitted that he “reviewed what [he] bclieve(dl to be three of the wiretaps in Fast and 
Furious, in what [he] now knows to be Fast and Furious.” ^ He further explained that nothing in 
them concerned him: 

What 1 can say is that had 1 seen anything in what I reviewed in 
connection with the wiretaps that gave me any reason to suspect that guns 
were walking in that case in Fast and Furious, I would have reacted very 
strongly to it. And you saw in the April 12th email, April 12, 2010 email, 
how strongly 1 reacted to guns that had walked 3 years earlier. If I thought 
that those guns were walking 3 weeks earlier or 3 days earlier or 3 hours 
earlier -- that is, that it was still ongoing — my reaction would have been 
even .stronger.” 


” Agent: I was Ordered to Let U S. Gum into Mexico, CBSNEWS.COM, March 3, 20]\, available at 
hitp://wvvw.cbsnews.com/slories/2()l ]/03/03/evcningnews/main2003903 1 .shtml. 

Weinstein Tr. at 87. 

Weinstein Tr. at 87. 

^'Weinstein Tr. at 92*93. 


10 



112 


During prior testimony before Congress, Breuer and Attorney General Eric Holder have both 
gone to great lengths to explain that the Criminal Division reviews Wiretap Affidavits only for 
legal sufficiency and not to evaluate the appropriateness of the tactics.^* It is now apparent why 
Breuer and the Attorney General have emphasized this point. That distinction is essential in 
order to avoid responsibility for knowing of the tactics described in the Wiretap Affidavits. 

Congressional investigators have learned about the information contained in one Wiretap 
Authorization and Wiretap Affidavit from Fast and Furious that Jason Weinstein signed. The 
Wiretap Affidavit presented Weinstein with the details of at least tw'o instances in which ATF 
agents had witnessed illegal straw purchasing and the subsequent transfer of the purchased 
weapons to other individuals. Considering that a single word, “monitor,” had made Weinstein so 
anxious in the description of Operation Wide Receiver, detailed eyewitness transactions in Fast 
and Furious should have caused Weinstein to sound the alarm immediately. The Wiretap 
Affidavit accompanying the Wiretap Authorization Weinstein signed described these two 
situations and several others in great detail. Yet, the straw purchasing ring continued to operate 
under the governmenf s nose for seven more months before indictments were finally handed 
down, thereby severely jeopardizing the safety of the citizens of Arizona, the American public, 
and the people of Mexico. 

IV. Main Justice: Failing to Ask Questions 

Through its investigation, Congress has learned that senior Department officials showed a 
serious lack of inquisitiveness when it came to discovering details about Operation Fast and 
Furious. They knew as early as April 2010 that ATF’s Phoenix Field Division - under the same 
SAC, Bill Newell - had previously used this same tactic of gunwalking. Still, these officials 
failed to ascertain the true scope of the program. Later, when whistleblowers came forward with 
information and supporting documents, these same officials provided false information to 
Congress and refused to get to the bottom of the matter. 

Over the past year, Congress has exposed the dangers of Operation Fast and Furiou.s to 
the public and has sought to bring accountability to the decision-makers responsible for its origin 
and implementation. Fast and Furious represents a breach of trust that, to date, has led to the 
tragic murder of Border Patrol Agent Brian Terry and the deaths of countless innocent Mexican 
citizens. Despite these tragedies, the Justice Department has obstructed the Committee’s 
investigation every step of the way. 

On July 4, 2011, the former ATF Acting Director testified that the Justice Department 
was managing the congressional investigation in order to protect the political appointees at the 
Department.^’ This statement has proved prophetic, as the Department has blamed everyone 
except for its political appointees for Fast and Furious. This includes the U.S. Attorney’s Office 
in Arizona, the ATF Phoenix Field Division, and even ATF headquarters. 


Test, of Assl Att’y Gen Lanny Breuer, Subcomm. on Crime and Terrorism, Senate Comm, on the Judiciary, 
"Combating International Organized Crime: Evaluating Current Authorities, Tools and Resources” (Nov. 1. 201 1): 
Test, of Ati'y Gen Eric Holder, Senate Judiciary Comm.. “Oversight of the U.S. Department of Justice,” (Nov. 8, 
201 i). 

^^' Transcribed Interview of Kenneth Meison, at 130 (July 4, 201 1) [hereinafter Meison Tr.]. 

il 



113 


For months, the Department has stonewalled Committee document requests and refused 
to comply with Committee subpoenas. The Department has produced scores of blacked-out 
pages containing no information and many duplicate documents in order to bolster its page 
count. Recently, the IG’s office disclosed that it has reviewed approximately 80,000 pages of 
documents related to Fast and Furious, and conducted approximately 70 interviews in its 
investigation. That investigation is not even close to completion. In comparison, the 
Department has produced just over 6,000 pages to Congress, representing only 8% of the 
materials available to the IG. The Department is withholding 92% of the documents it has given 
the IG, Also, Congress has conducted 22 Interviews - only 31% of the total the IG has already 
conducted. If the Department granted Congress access to all the documents and witnesses 
available to the IG, it would be much closer to determining who was actually responsible for Fast 
and Furious. 

The Department has set an arbitrary cut-off date of February 4, 2011, for the purpose of 
withholding documents pertaining to Fast and Furious - even with respect to documents directly 
responsive to the Committee’s subpoenas. The Department simply cites a “constitutional 
privilege” of separation of powers as a basis for its decision, without providing any legal basis 
for doing so. Despite the Committee’s emphasis on the importance of these documents to this 
investigation, the Department has declared that will not provide the Committee with any 
documents created after February 4, 201 i . 

In transcribed interviews, the Department has also instructed its witnesses from 
answering any questions that pertain to the post-February 4, 201 1 period. This is unacceptable. 
The Department provided Congress undeniably false information in its February 4, 201 1 letter, 
which it ultimately had to withdraw - an unprecedented action. It is therefore imperative to 
investigate when and how the Department learned that information was false and why it refused 
to acknowledge the information was false until nearly nine months later. 

Ju.st last week the Department provided a document showing that Lanny Breuer was 
advocating gunwalking on February 4, 201 1 This advocacy came the same day the 
Department told Congress that it “makes every effort to interdict weapons that have been 
purchased illegally and prevent their transportation to Mexico.’”" Breuer, who had forwarded a 
draft copy of the Department’s letter to his private e-mail account the day before, suggested to 
the Attorney General of Mexico that they allow straw purchasers to enter Mexico. His advocacy 
of this new, sister plan to Fast and Furious demonstrates a critical lapse in Judgment. Breuer’s 
failure here stands in stark contrast to his public pronouncements, 

V. Justice Department Blaming Everyone Else 

ATF witnesses pointed to a Department of Justice Cartel Strategy promulgated by the 
Deputy Attorney General in late 2009 as the impetus for Fast and Furious. The strategy 
encourages the utilization of OCDETF cases, and notes that: 


E-mail from Anthony Garcia to Adam Lurie (Feb. 4, 201 1) [HOGR 005754], 

Letter from Asst Alt’s Gen Ronald Weich to Senator Charles E. Grassley (Feb. 4, 2011). 

12 



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[MJerely seizing firearms through interdiction will not slop firearms 
trafficking to Mexico. We must identify, investigate, and eliminate the 
sources of illegally trafficked firearms and the networks that transport 
them.''^ 

The Assistant SAC of the ATF Phoenix Field Division pointed to this Justice Department 
initiative as one of the reasons Fast and Furious came into being.*'^ ATF Deputy Director 
William Hoover also used this strategy to create internal ATF guidelines “that, exactly, fit in 
with the Department of Justice cartel strategy.”''^ The ATF Phoenix Field Division, using both 
this Justice Department strategy and Breuer’s decision to pursue prosecutions in Operation Wide 
Receiver, believed it had the support of Main Justice to launch Operation Fast and Furious, 

A. Gary Grindler, former Acting Deputy Attorney Gencrat and current Chief of 
Staff to the Attorney General 

Gary Grindler was the Acting Deputy Attorney General during Fast and Furious from 
February 4, 2010 until the end of 2010. Currently, he is Chief of Staff and Counselor to the 
Attorney General. Grindler claims his staff was responsible for alerting him to any problems 
during Fast and Furious. He testified he knew incredibly little about Fast and Furious, and is 
aware of only scant details even to this day. 

Grindler has made no attempt to find out what actually happened during Fast and 
Furious, despite having been second-in-command in the Department during the pendency of the 
operation, and in charge of the office with direct supervisory authority over ATF. Grindler said 
that during a very detailed March 12, 2010 briefing on Fast and Furious he did not fully 
appreciate the volume of guns that were being transported to Mexico under the program because 
he was new to the job. Therefore, he was unable to make the necessary connections, ask the 
proper questions, and follow up with ATF after the briefing or have his staff monitor the 
program closely. If Grindler is to be believed, because he was new to the job, he let ATF operate 
in an uncontrolled manner. 

Grindler’s management style made it highly unlikely that he would ever discover any 
wrongdoing. Grindler blames his staff: 

A. The way I organized the office was I had two individuals on my 
staff who had ATF as a component where they have responsibility. 

These individuals had other responsibilities, but that was one of 
their responsibilities. So from a management point of view, they 
had the responsibility to know more than I knew about ATF, and if 
there were issues that they believed needed to be brought to my 
attention, then I expected them fo bring it to my attention. 


"■ E-mail from [DOJ] on behalfof David Ogden to Kathryn Ruemmler, et al. (Oct. 26, 2009). 

Transcribed Interview of George Giilelt. at 1 1-12 (May 17, 201 i). 

" Transcribed Interview of Wiliiam Hoover, at 139 (July 21, 2011). 

Transcribed Interview of Gary Grindler. at 15 (Dec. 14, 2011) [hereinalter Grindler Tr.]. 

13 



115 


Beyond that, ATF being a law enforcement component works with 
the United States Attorneys across the country, and if there are 
issues either way with those relationships, it would be my 
expectation that either the United States Attorneys would either 
directly or through the executive office of U.S. Attorneys bring 
issues to my attention that they thought warranted my attention, 
and if ATF similarly had issues with United States Attorneys, I 
would expect it to bring it to my attention. And obviously the head 
of ATF had a responsibility to bring Issues to my attention. 

Q. And who were your — 1 guess they were associate deputies that had 
the ATF portfolio? 

A. One. 

Q. Mr. Siskel was one? 

A. Mr. Siskel was an Associate Deputy Attorney and he had ATF as a 
portfolio."'’ 

Ed Siskel now works in the White House Counsel's Office. 

Grindler also failed to reach out proactively to Siskel to head off any problems. 

Q. And did you have regular meetings with Messrs. Siskel and 
Michalic about ATF, or did you learn about ATF, manage ATF, 
only on an as-needed basis? 

A. I don’t recall a specific meeting with them solely about ATF. 1 
said to my staff if there is an issue 1 really need to know, they need 
to come in and tell me."’ 

Grindler delegated responsibility to his subordinates and relied on them to bring any 
problems to his attention. Despite the disastrous results, he found no fault with this passive 
approach: 

Q. What other types of management decisions have been made at the 
Department to make sure a case like this will never happen in the 
future? 

A. 1 don’t know whether there are other management decisions, 1 
think to the e.xtent that information comes in regarding this matter 


* Grindler Tr. at 1 0 {cmpha.sis added). 
Grindler t r. at 11. 


14 



116 


and to the extent that it gives us a basis to do - where we think we 
need to take a management decision. When I say we, again, I am 
not the decision-maker, but I believe that that is and will be an 
ongoing process to review that, consider that, in the context of 
management,*'* 

The current Acting Director of ATF, a direct appointee by Attorney General Holder, however, 
disagrees with Grindler’s management approach: 

Anybody, including Mr. Melson, who waits for things to happen or waits 
for information to come to them, that is something 1 personally am not a 
believer in. I’m a believer in management by walking around. If you’re 
not hearing it, you seek it out. And there are a lot of ways to do that 
other than sitting in your corner office waiting for memos to come 
in.*” 


Grindler frequently deflected all responsibility for learning the gunwalking tactics that ATF 
used; 

Q. Did you assign Mr, Siskel to keep track of this case on a going 
forward basis? 

A. 1 don’t recall. Again, ATF is his responsibility. 

Q, Do you recall any specific conversations with Mr. Siskel about the 
Fast and Furious case outside of this meeting and the other ATF 
monthly meetings? 

A. No.“ 

To this day, Grindler maintains knowing little about Fast and Furious: 

Q. So it is your position that ATF didn’t let these guns walk? 

A. 1 don’t know all the details of the facts. I believe that there were 

serious flaws in their operational tactics. But it is a fairly high 
level understanding that it included dropping of surveillance, 
maybe not interdicting guns where they had a legal basis to 
interdict. Exactly how many of the guns fall into those categories 
and how many don’t, I don’t know. I just don’t know. 


* Grindler Tr. at 25-26. 

" Richard Serrano. /Ing/y Former A TF Chief Blames Subordinates for Fast and Furious, LA TIMES. Dec. 24. 20 1 1 
available at http://articles.iatimcs.coin/201 l/dec/24./nation/la-na-fast-l'urious-201 11225 (emphasis added). 

“/rf. at 17-18, 

" Id at 23-24. 


15 



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Grindler appeared for a transcribed interview in December 201 1 - almost a full year 
after the scandal broke, and a year after he was informed, in detail, about Fast and Furious 
and the connection to Brian Terry’s death. Amazingly, during the past year he failed to learn 
anything about the case and failed to re-examine the case in any meaningful way: 

Q. So you haven’t done any retrospective work, given the fact that 
you were the Deputy at the time and now you are one of the 
principal advisers for the Attorney General? 

A. I don’t know what you mean by retrospective work. 

Q. Well, what the heck happened, and how can we make sure, since 
you were the Deputy at the time when the Fa.st and Furious case 
unfolded, really bad things happened, what can we learn from that 
to make sure it doesn't happen again? 

A. 1 believe that the Deputy Attorney General’s office is engaged 
in - has been engaged in considering what steps need to be made 
and there has been consultation with the Attorney General. It has 
been taken very seriously. 

For nearly a year, Grindler held the number two position at the Department of Justice, Yet after 
all this time, he pleads ignorance on a number of critical issues: 

Q. Fast and Furious was described by ATF during the pendency of the investigation 
as a complex firearms trafficking network. We now know it wasn’t that complex. 
There were - there’s 1 9 indicted straw purchasers. We’re told there’s 40 more 
coming. But they all were reporting into Acosta, and Acosta was working with 
two - one or two unnamed persons. Those two unnamed persons were working 
with the Sinaloa cartel. Is that your understanding of the network now? 

A. I don’t have a detailed understanding now of the network. 

* ♦ ♦ 

Q. Which presents the difficult question. ATF had this, what was described as a 
promising firearms trafficking case so they can better understand the network and 
find out who it was, the link to the Sinaloa cartel. And once they find out that 
link, turns out they are working with the FBI and can’t be prosecuted. Is that 
troubling to you? 

A. I just don’t know what the facts are so it’s impossible for me to respond. I know 
that’s one of the inquiries that the committee has, and 1 know that people at the 


Grindler Tr. at 26-28. 


16 



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Department are trying — either have or are trying to get the details of that. But I 

just don’t know what they are. 

Q. Is that a problem? Does that trouble you? 

A. I really would have to sit here and go through the specific facts to understand 
them. There are a lot of moving parts here, I just don’t feel comfortable 
opining on it.^^ 

B. Jason Weinstein, Deputy Assistant Attorney General 

Even after learning about gunwalking in Wide Receiver, Jason Weinstein failed to ask 
key questions about Fast and Furious. Yet, Weinstein volunteered to help write the February 4, 
2011, letter to Senator Grassley that denied the initial gunwalking allegations. Fie offered to help 
even though the Criminal Division has no supervisory authority over ATF and even though he 
claimed not to know about the tactics used in Fast and Furious, Though the Criminal Division 
had a prosecutor assigned to Fast and Furious, Weinstein deflected any accountability by 
blaming ATF and the U,S. Attorney’s Office in Arizona for the false information contained in 
the letter: 

Because of the repeated assurances I and others received in February, 

2011, from the then current leadership of the U,S. Attorney’s Office in 
ATF that guns had not walked in Fast and Furious and from ATF that it 
was making every effort to interdict guns, I did not make any connection 
between Wide Receiver and Fast and Furious. For that reason, I simply 
was not thinking about Wide Receiver as 1 assisted with the February 4th 
letter which 1 understood to be about Fast and Furious, 

The February 4, 20 1 1 letter states that “ATF makes every effort to interdict weapons that 
have been purchased illegally. . , Weinstein knew at that time that ATF in fact did not make 
every effort to interdict weapons purchased illegally. Me knew about gunwalking tactics in Wide 
Receiver, and he should have been aware of the details in the Fast and Furious Wiretap 
Affidavits. Weinstein had access to a great deal of information, but rather than looking 
internally for answers, he chose instead to go outside his chain of command and accept the 
representation of the head of the U.S, Attorney’s office in Arizona - an individual who was 
complicit in the failure of the program: 

Given what I know now, of course, I wish I had not placed such faith in 
the assurances provided to me by the leadership of the U.S. Attorney’s 
Office and ATF. But given what I knew then and given the strength of 
those assurances 1 believed at the time that it was entirely appropriate to 
do so, 1 trusted what was said to me and 1 firmly believed at that time that 


W. at 1 10-1 1 i (emphasis added). 

’’ Weinstein Tr. al 12. 

’’ Letter trom Ronald Welch to Senator Charles Grassley (Feb. 4, 20i 1). 

17 



119 


in fact ATF had not let guns walk in Fast and Furious. Obviously, time 
has revealed the statements made to me and others to be inaccurate, and 
that is beyond disappointing to me.^* 

Weinstein went on to hold federal officials in Arizona responsible: 

And it is important to note that I relied on inaccurate information from the 
U.S. Attorney’s Office and ATF not only in assisting with the 
February 4th letter but also in my subsequent communications with my 
own chain of command, Just as 1 would never have intentionally 
participated in providing inaccurate information to Congress, 1 certainly 
would never have intentionally provided inaccurate information to my 
own chain of command,” 

Weinstein clearly identified the sources of the so-called bad information he received: 

A. Now, as it turns out, weeks later when 1 did receive information 
directly from the people you are talking about, people working 
with Mr. Burke, I got the same bad information. 

Q. And that was Mr. Hurley and those folks? 

A. It was Mr. Hurley and his criminal chief 

Q. Mr. Cunningham. 

A. Mr. Cunningham.’* 

Weinstein further testified that he was very upset upon learning about gunwalking in Wide 
Receiver: 

If you look at the April 12th email, you will get that my reaction was I 
stunned about the tactics. And one of the reasons 1 was stunned was 
because in my career as pro.secutor we had ~ 1 had always gone to great 
lengths and taught people to go to great lengths to avoid letting even a 
single operable firearm to get out of law enforcement’s control. So that’s 
the depth of my concern about it, and that’s the way i communicated it to 
the folks from ATF at that meeting. I communicated as clearly as I could 
that those tactics were inappropriate, albeit under different ATF 
management and 3 years earlier, they were nevertheless inappropriate.” 


Wein-Stein Tr. at 12. 
Weinstein Tr. at 13-14. 
'* Id at 48. 
at 20-21. 


18 



120 


Yet, he never put these serious misgivings in writing. Indeed, not a single e-mail produced by 
the Justice Department to Congress corroborates his professed outrage. Instead, the 
congressional inquiry has found only one instance in which he communicated his disapproval - a 
single meeting with ATF Assi.stant Director Hoover, after which he considered the matter closed: 

Q. So there is not a single email that shows — in other words, there is 
no written record that shows that you were upset over these 
tactics? 

A. No, there’s just the meeting itself that I had in which I 
communicated it face to face. 

Q. So there is a single meeting you had? 

A, It was a single hour-long meeting in which I communicated my 
concerns about the tactics.™ 

Weinstein placed blame for Fast and Furious on ATF’s Phoenix Field Division - 
specifically SAC William Newell: 

A. I will say that I have significant concerns based on w'hat 1 know 
now about the management, about what appeared to me to be some 
management issues in the Phoenix field office of ATF. . . . 

Q. What about approving the so-called misguided tactics? I mean, 
isn’t that on the SAC as well? 

A. Well, again, 1 don’t know what he did, what he didn’t do. I don’t 
know if the facts of that have come out yet or will come out. But, 
ultimately, he is at the top of the management chain in an office, 
and to the extent that tactics were being used in that office that 
shouldn’t have been used - it is my view that it is not a terribly 
large office, but there are a number of levels of supervision 
between him and the line agent. But at the end of the day the SAC 
is responsible for what goes on in his office.*' 

Weinstein refuses to accept any responsibility for Fast and Furious. Despite the fact that 
he was in a unique position to stop the program because of the Intercept Order Applications he 
approved, he deflects all blame for not stopping it to ATF and the U.S. Attorney’s Office, He 
admitted that “gun-walking is a pretty extraordinary thing and it’s an extraordinarily bad 


“ Id. at 19-20. 

Id. at 29. 

19 



121 


tactic.”^^ Weinstein’s unique knowledge of both Wide Receiver and Fast and Furious put him in 
a position to sound the alarm, yet he did nothing. 

C. Dennis Burke, former U.S. Attorney for the District of Arizona 

In late October, Attorney General Eric Holder followed up on a communication from 
Senator Grassley about whistleblower retaliation by implying that that the Justice Department 
had held someone accountable for the leak of a document about one of the whistleblowers in Fast 
and Furious. However, that person turned out to be former U.S. Attorney for the District of 
Arizona Dennis Burke — who had already resigned of his own accord on August 30, 201 1 
Burke’s lawyers publicly admitted on November 8, 201 1 that he had had a role in leaking the 
document. 

In a subsequent second interview with congressional investigators, Burke claimed he had 
been contacted by a reporter in Washington, D.C, who was apparently already familiar with the 
contents of the document and asked him for a copy of it.*"* When asked how he provided the 
document to the reporter, Burke he had a personal friend hand-deliver the document to the 
reporter instead of e-mailing it to him.*^ Questioned about why, Burke appeared unwilling to 
acknowledge that it signaled any consciousness of guilt: 

Q, So that you wouldn’t — I don’t understand. Why wouldn’t you just 
email it to him? That would be the simplest, easiest thing to do. 

A. That would be the simplest, easie,st way. 

Q. Yeah. 

A. And that’s when I said, “1 can mail it to you,” as opposed to it 
being forwarded around the [reporter’s] office, I guess. 

Q. So which one of you suggested that it not be emailed? 

A. I think I did, but I can’t remember the conversation. 

Q. So why did you just suggest that? 

A. Because he was - he had initially said something about, “You can 

email it to me or have it sent to me,” and I took the option of 

having it sent to him. And then he said, “I don’t have an address.” 

So 1 took the option of delivering it to him. 


’ Mindy Blake, U.S. Attorney for Arizona resigns, KOLD.-'KSMB (Aug. 30, 2011), available at 
http://ww'\v,tucsonnewsnovv.com/.storyyi5359994/us-aUomey-for-az-resigns. 

“ Mindy Blake, U.S. Allorney for Arizona resigns, KOLD/KS.MB (Aug, 30, 2011), available at 
htlp:/.^ww\v.tucsonnewsnovv.com/story/15359994./us-anorney-for-az-resigns. 

Transcribed Interview of Dennis Burke, at 191-192 (Dec. 13, 20! 1) [hereinartcr Burke Tr.]. 
Burke Tr. at 192-193. 


20 



122 


Q. So why did you prefer not to email it directly to him? 

A. Probably so it wouldn’t be on the system there, 

Q. And why? But why? Why did you not want it on the system there? 

A. Just for circulation purposes. 

Q. What does that mean? 

A. What does it mean? 

Q. Yeah, what do you mean, “for circulation’’ — 1 don’t know what 
that means, “for circulation purposes.” 

A. So that he had just a hard copy of the memo as opposed to an email 
version. 

Q. To prevent him from forwarding it as easily, is that what you 
mean? 

A. I guess. Yeah, yeah. 

Q. Did you have an arrangement with him that he agreed not to 
forward it? 

A. No.^^ 

When asked directly about his motives. Burke denied that it was retaliation for the 
whist lebiowing.'’^ 

Q. So what was your motivation? 

A. That [the reporter] had asked for it, and I figured it was going to be 
going out anyway, and I would give him a time advantage in 
getting it. 

Q. Are you aware now that it was actually not provided to the Hill? 

A. I was told later, yeah.*’* 


“Burke Tr. at 192-195. 

Burke Tr. at 198. 

“ Burke Tr. at 198-199. 


21 



123 


The seriousness of a U.S, attorney seeking to undermine a whistleblower was further 
underscored by the seriousness of why he had the document in the first place. Burke testified 
that he became aware of the document only because the Justice Department had provided it to 
him.*’’ He also testified that the Department was providing such documents to other individuals 
in the Arizona U.S. Attorney’s office under investigation, Patrick Cunningham and Mike 
Morrissey.™ Although this was ostensibly for review of the documents, Burke testified that the 
Department never asked him anything about the documents it was providing to him.’' The 
Justice Department has yet to provide a reasonable explanation as to why it was providing 
documents to the very individuals who are under investigation by Congress. 

Until July 2011, the Department also maintained a shared drive with key documents that 
various ATF leadership under investigation had access to.’^ The Department’s actions made it 
less likely that congressional investigators would be able to receive untainted testimony from the 
leadership of ATF and the Department being investigated, since individuals could consult the 
shared drive to figure out what Congress already knew from the documents produced under 
subpoena — and thus what they would have to admit in their congressional testimony. 

VI. Conclusion 


ATF blames Main Justice for encouraging Fast and Furious. The Justice Department 
blames ATF and the Arizona U.S. Attorney's Office for the use of misguided tactics. Those who 
were in a position at Main Justice to slop the program blame their staffs for not bringing issues 
regarding Fast and Furious to their attention. U.S. Attorney’s Office personnel have either taken 
the Fifth Amendment and refused to di,scuss the issue with Congress, or have been estopped by 
the Justice Department from talking to Congress altogether. As the former ATF Acting Director 
testified in July 201 i, it appears very clearly that the Department is circling the wagons to 
protect its political appointees. 

The family of Brian Terry, the families of countless citizens in Mexico slain by weapons 
purchased through Fast and Furious, and the American people deserve to know the truth. The 
Justice Department’s failure to be forthcoming and cooperate with the Committee’s investigation 
is unacceptable. The Justice Department’s failure to fully comply with congressional subpoenas 
only prolongs the inquiry and damages the public’s trust in the Department’s leadership. 


“Burke Tr. at 195-196, 200. 

™ Burke Tr. at 196. 

” Burke Tr. at 200. 

’■ Letter from Department of Justice to Chairman Issa and Ranking Member Grassley, Sep. 19. 201 1. at 2. 

22 



124 


Chairman ISSA. I will now recognize myself for 5 minutes — oh, 
I am sorry. I am a little off on that. To he honest, I just thought 
I would respond to a few of your things, but that will wait. 

Mr. Attorney General, we are pleased to have you here. As the 
highest-ranking law official in the land, we appreciate your com- 
mitment to the time, both here and in the Senate, that you have 
given. 

Contrary to the ranking member, I believe that today will be one 
of the first times in which you are fully briefed and prepared to an- 
swer in detail questions exclusively about Fast and Furious; and I 
would caution both sides of the aisle to stick to the subject. We are 
not — and I repeat — we are not the Judiciary Committee. The Attor- 
ney General is not here to answer a plethora of questions we may 
have about the conduct of his office. He is not here to generally tell 
us about law enforcement. I will assert the gavel if someone goes 
on a broad expedition beyond Fast and Furious and, as the ranking 
member said, related activities, including Wide Receiver and oth- 
ers. I think respect for the Attorney General’s time and the legiti- 
mate portion of the jurisdiction that our committee has taken re- 
quires that I ask all of you to please stick to that, particularly since 
the Attorney General’s time is valuable. 

Mr. Attorney General, pursuant to the rules of the committee, I 
would ask that you rise and take the oath. 

[Witness sworn.] 

Chairman IssA. Let the record represent an affirmative answer. 
Thank you, Mr. Attorney General. 

In order to allow time for discussion, the committee, like all com- 
mittees, will tell you to stay within 5 minutes. I in fact have no 
intention on picking up the gavel as long as you present what you 
have here today. 

I would ask that to the greatest extent possible that you realize 
that your opening statement in its written form is completely in 
the record and that you certainly have our permission to include 
material not in the record in order to further delineate your pre- 
pared testimony today. 

With that, Mr. Attorney General, you are recognized. 

STATEMENT OF ERIC H. HOLDER, JR., ATTORNEY GENERAL 
OF THE UNITED STATES 

Attorney General Holder. Thank you. 

I am here today because I understand and appreciate the impor- 
tance of congressional oversight and because I am committed to en- 
suring the highest standards of integrity and professionalism at the 
U.S. Department of Justice. That is precisely what I pledged to do 
exactly 3 years ago tomorrow when I was sworn in as Attorney 
General, and it is exactly what I have done over the last 3 years. 

My dedication to the Department’s mission is shared by an ex- 
traordinary group of colleagues, over 117,000 employees, who each 
day in offices all around the world work tirelessly to protect the 
American people from a range of urgent and unprecedented 
threats — from global terrorism and financial fraud, violent crime, 
human trafficking, civil rights abuses, and more. 

Over the last 3 years, we have made a number of significant im- 
provements, including policy and personnel changes that address 



125 


many of the concerns that are the subject of this hearing today. 
Today, I would like to discuss some of these improvements in spe- 
cific terms and outline the steps that we have taken to ensure that 
the flawed tactics in Operation Fast and Furious and in earlier op- 
erations under the prior administration are never used again. 

Now, in some of my comments today, if they sound familiar, it 
is because this marks the sixth time that I have answered ques- 
tions about this operation before a congressional committee in the 
last year. Let me start, however, with something that cannot be 
said enough: Allowing guns to “walk”, whether in this administra- 
tion or the prior one, is wholly unacceptable. I have been consistent 
on this. I have said this from day one. The tactic of not interdicting 
weapons, despite having the ability and legal authority to do so, 
appears to have been adopted in a misguided effort to stem the 
alarming number of illegal firearms that are trafficked each year 
from the United States to Mexico. Now, to be sure, stopping this 
dangerous flow of weapons is a laudable and critical goal, but at- 
tempting to achieve it by using such inappropriate tactics is nei- 
ther acceptable nor excusable. 

That is why, when I learned early last year about the allegations 
raised by ATF agents involved with Fast and Furious, I took ac- 
tion. In addition to requesting an Inspector General investigation 
last February, I ordered that a directive be sent prohibiting the use 
of such tactics. There have also been important personnel changes 
in the Department, and vital reforms reflecting the lessons that we 
have learned from Operation Fast and Furious have been imple- 
mented. 

Today, I want to reaffirm my commitment to ensuring that these 
flawed tactics are never used again, and I reiterate my willingness 
to work with Congress generally and with this committee more spe- 
cifically to address the public safety and national security crisis 
along our Southwest border that has taken far too many lives. 

Congress has legitimately sought answers to questions about law 
enforcement Operations Wide Receiver and Fast and Furious, and 
my colleagues and at the Department of Justice have worked dili- 
gently to provide those answers. In addition to my frequent testi- 
mony before Congress, I have answered and am continuing to an- 
swer questions that have been submitted for the record during pre- 
vious hearings. The Department has also responded to more than 
three dozen letters from Members of Congress and facilitated nu- 
merous witness interviews. We have also submitted or made avail- 
able for review some 6,400 pages of documents to congressional in- 
vestigators. This has been a significant undertaking for Justice De- 
partment employees, and our efforts in this regard remain ongoing. 

We have also provided Congress with virtually unprecedented ac- 
cess to internal deliberative documents to show how inaccurate in- 
formation was initially conveyed in a letter sent to Senator Grass- 
ley on February 4, 2011. These documents show that Department 
officials relied on information provided by supervisors from the rel- 
evant components in the best position to know the facts. We now 
know that some of the information that they provided was, in fact, 
inaccurate. We also understand that in subsequent interviews with 
congressional investigators these supervisors stated that they did 



126 


not know at the time that the information that they provided was 
inaccurate. 

In producing internal communications regarding the drafting of 
the February 4th letter, the Department made a rare, limited ex- 
ception to longstanding executive branch policy. This decision re- 
flected unusual circumstances and allowed us to respond, in the 
most comprehensive way possible, to congressional concerns where 
the Department itself concluded that information in the letter was 
inaccurate. The documents we produced have answered the ques- 
tion of how that letter came to be drafted and put to rest questions 
of any intentional effort to mislead. All of our communications to 
Congress should be accurate, and that is the standard that I expect 
the Department to meet. At my direction, the Deputy Attorney 
General has instituted new procedures to increase safeguards in 
this area. 

As I testified in a previous hearing, the Department does not in- 
tend to produce additional deliberative materials — I want to em- 
phasize deliberative materials — about the response to congressional 
oversight or media requests that post-date the commencement of 
congressional review. This decision is consistent with the long- 
standing approach taken by the Department, under both Demo- 
cratic and Republican administrations, and reflects concerns for the 
constitutionally protected separation of powers. 

Prior administrations have recognized that robust internal com- 
munications would be chilled and the executive branch’s ability to 
respond to oversight requests thereby impeded if our internal com- 
munications concerning our responses to congressional oversight 
were disclosed to Congress. For both branches, this would be an 
undesirable outcome. The appropriate functioning of the separation 
of powers requires that executive branch officials have the ability 
to communicate confidentially as they discuss how to respond to in- 
quiries from Congress. 

Now, I want to note that the separation of powers concerns are 
particularly acute here, because the committee has sought informa- 
tion about open criminal investigations and prosecutions. This has 
required Department officials to confer on how to accommodate 
congressional oversight interests while also ensuring that critical 
ongoing law enforcement decisionmaking is never compromised and 
is free from even the appearance of political influence. Such candid 
internal deliberations are necessary to preserve the independence, 
the integrity, and the effectiveness of the Department’s law en- 
forcement activities and would be chilled by disclosure of such ma- 
terials. Just as we have worked to accommodate the committee’s le- 
gitimate oversight needs, I trust that the committee will equally 
recognize the executive branch’s constitutional interests and will 
work with us to avoid further conflict on this matter. 

I know the committee is also keenly interested in the policy 
changes that the Department has undertaken in the wake of Oper- 
ation Fast and Furious. The ATF, which is now under the leader- 
ship of Acting Director Todd Jones, has implemented a number of 
key reforms and critical oversight procedures to prevent such a 
flawed operation from occurring again. These reforms are numer- 
ous and include a number of things. 



127 


I am also pleased to report that, under the leadership of the De- 
partment’s Criminal Division, we have bolstered crime-fighting ca- 
pacity on both sides of the U.S. -Mexico border; and we have done 
this by doing a number of important things as well. 

This is an important start, but we have to do a lot more. And 
no one knows this better than the members of our Nation’s law en- 
forcement community, including — and I want to emphasize this — 
including the ATF agents who testified before this committee last 
summer. Not only did these brave agents bring the inappropriate 
and misguided tactics of Operation Fast and Furious to light, they 
also sounded the alarm for more effective laws to combat gun traf- 
ficking and to improve public safety. 

These courageous agents explained that ATF’s ability to stem the 
flow of guns from the United States into Mexico suffers from a lack 
of effective enforcement tools. Unfortunately, in 2011, a majority of 
House Members, including all the members of the majority on this 
committee, voted to keep law enforcement in the dark when indi- 
viduals purchase multiple semiautomatic rifles, shotguns, and long 
guns — like AK-47s — in gun shops along our Southwest border 
states. 

In this new year, I hope that we can work together to provide 
law enforcement agents with the tools that they say they des- 
perately need and that they have requested to protect our citizens 
and to ensure their own safety. Indeed, incidents of violence 
against law enforcement officers are approaching the highest level 
that we have seen in nearly two decades, even though violent crime 
is down overall. 

That is simply unacceptable, and the Justice Department is com- 
mitted to turning back this rising tide and to protecting those who 
serve on the front lines. We have designed and implemented a com- 
prehensive new training initiative to provide law enforcement lead- 
ers with the information, analysis, and tools they need to respond 
to a range of threats. 

Let me be clear: Nothing is more important than ensuring the 
safety of the brave law enforcement professionals who put their 
lives at risk for us each and every day, but we can’t make the 
progress we need and that the law enforcement partners deserve 
without your assistance and without your leadership. 

As I said before, I am determined to ensure that our shared con- 
cerns about these flawed law enforcement operations lead to more 
than worn-out Washington “gotcha” games and cynical finger point- 
ing. The Department of Justice stands ready to work with you not 
only to correct the mistakes of the past but also to strengthen our 
law enforcement capacity in the future. 

Thank you. 

Chairman ISSA. I thank the gentleman. 

[The prepared statement of Attorney General Holder follows:] 



128 


Statement of 
Eric H. Holder, Jr. 

Attorney General 

United States Department of Justice 
Before the 

Committee on Oversight and Government Reform 
United States House of Representatives 

February 2, 2012 


Chairman Issa. Ranking Member Cummings, and members ol'lhe Committee, i am here 
today because I understand and appreciate the importance of congressional oversight, and 
because 1 am committed to en.suring the highest standards of integrity and professionalism at the 
Department olbfuslice. That's precisely what I pledged to do - exactly three years ago tomorrow 

- when I was sworn in as .AUorney General. And it is c.xactly what I have done. 

My dedication to the Department's mission is shared by an extraordinary group of 
colleagues: the ! 1 7.000 eniplor ccs who - each day. in oflices all around the world - work 

tirelessly to protect the American people from a range oi' urgent and unprecedented threnls 

from global terrorism tind violent crime, to linancial fraud, human trafficking, civil rights abuses, 
and more. Over the Iasi three years, we've made a number of signilicant improvements, 
including policy and personnel changes that address many of the concerns that are the subject ol' 
this hearing. Today. I'd like lo discuss some of these improvements in specific terms - and 
outline Ihe steps that we have taken to ensure that the flawed tactics used in Operation Fast and 
I 'urious - and in earlier operation.s under llte prior Administration - are never again used. 

If some of my comments today .sound familiar, it is because this marks the sixth time I 
have answered questions aboul this operation before a congressiontil committee in the last year. 
Let me start, however, with something that cannot be said often enough: allowing guns to “walk'’ 

- whether in this Administration or in the prior one - is wholly unacceptable. This tactic of not 
interdicting weapons, despite having the ability and legal authority to do so, appears to have been 
adopted in a misguided effort to stem the alarming number of illegal firearms that are trafficked 
each year from the United States to Mexico. To be sure, stopping this dangerous flow of 
weapons is a laudable - and critical - goal. But attempting to achieve it by using such 
inappropriate tactics is neither acceptable nor excusable. 

That's why, when 1 learned early last year about the allegations raised by .A IT agents 
iiivoh ed with fast and Furious. I look action. In addition to requesting an Inspector General 
investigation last February. 1 ordered that adirective be sent prohibiting the use of such tactics. 

I herc also have been important personnel changes in the Department. And vital reforms 
rctlecling the lessons we have learned from Operation Fast and Furious have been implemented. 

Today, 1 reaffirm my commitment to ensuring that these flawed tactics are never used 
again. And I reiterate my willingness to work with Congress to address the public safety and 
national security crisis along our southwest border that has taken far too many lives. 


1 



129 


Congress has sought answers to questions about law enforcement Operations Wide 
Receiver and Fast and Furious. And my colleagues and 1 at the Department of Justice have 
worked diligently to provide those answers. In addition to my frequent testimony before 
C'ongress, I have answered - and am continuing to answer - questions that have been submitted 
for the record during previous hearings. The Department also has responded to more than three 
dozen letters from members of Congress and facilitated numerous witness interviews. We also 
have submitted or made available for review more than 6,400 pages of documents to 
congressional investigators, fhis has been a significant undertaking for Department cmplo)'ccs - 
and our efforts in this regard remain ongoing. 

We also have provided Congress with virtually unprecedented access to internal 
deliberative documents to show how inaccurate information was inilialiy conveyed in a letter 
sent to .Senator Cirassley on February 4. 201 1 , These documents show that Department officials 
relied on information provided by supervisors from the relevant components in the best position 
to know the facts. We now know that some of the information they provided was inaccurate. 

We also understand that, in subsequent interviews with congressional investigators, these 
supervisors have stated that they did not know at the time that the information they provided was 
inaccurate. 

In producing internal conmumicalions regarding the drafting of the February 4"’ letter, the 
Department made a rare, limited exception to longstanding Hxecutive Branch policy. This 
decision rellected unusual circumstances and allowed us to respond, in the most comprehensive 
way possible, to congressional concerns where the Department itself concluded that information 
in the letter was inaccurate. Ilte documents we produced have answered the question of how 
that letter came to he drafted and put to rest questions about any intentional effort to mislead. 

All of our communications to Congress should be accurate and that is the standard I expect the 
Department to meet. At my direction, the [Deputy Attorney General has instituted new 
procedures to increase safeguards in this area. 

As I testified in a previous hearing, the Department does not intend to produce additional 
deliberative materials about the response to congressional oversight or media requests that post- 
date the commencement of congressional review, 'fhis decision is consistent vvith the 
longstanding approach taken by the Department, under both Democratic and Republican 
administrations, and reflects concerns for the constitutionally-protected separation of powers. 

Prior administrations have recognized that robust internal communications would be 
chilled, and the Executive Branch’s ability to respond to oversight requests thereby impeded, if 
our internal communications concerning our responses to congressional oversight were disclosed 
to Congress. For both Branches, this would be an undesirable outcome. The appropriate 
functioning of the separation of powers requires that Executive Branch officials have the ability 
to communicate confidentially as they discuss how to respond to inquiries from Congress. 

I want to note that the separation of powers concerns are particularly acute here, because 
the Committee has sought information about open criminal investigations and prosecutions. This 
has required Department officials to confer about how to accommodate congressional oversight 
interests while also ensuring that critical ongoing law enforcement decision-making is not 
compromised, and is free from even the appearance of political influence. Such candid internal 
deliberations are necessary to preserve the independence, integrity, and effectiveness of the 
Department’s law enforcement activities and would be chilled by disclosure to Congress of such 


2 



130 


materials. Just as we have worked to accommodate the Committee’s legitimate oversight needs, 

1 trust that the Committee will equally recognize the Executive Branch’s constitutional interests 
and will work with us to avoid further conflict on this matter. 

I know the Committee also is keenly interested in policy changes that the Department has 
undertaken in the wake of Operation Fast and Furious. The ATF. which is now under the 
leadership of Acting Director Todd Jones, has implemented a number of key reforms and critical 
oversight procedures to prevent such a flawed operation from occurring again. These reforms 
include: claril'y ing current firearms transfer policies to more effectively prevent tlie criminal 
acquisition, trafficking, or misuse of firearms; implementing a new Monitored Case Program 
designed to facilitate closer coordination on sensitive investigations between ATF field and 
headquarters personnel; revising policies regarding the use of confidential informants to, among 
other things, prevent using I'edcral Firearms Licensees as paid informants except in limited 
circumstances; and reinforcing the importance of deconfliction and information sharing so law 
enforcement agencies can investigate subjects more elTectively. 

I'm also pleased to report that, under the leadership olTlie Department's Criminal 
Division, wc'vc bolstered crime-fighting capacity on both sides of the U.S. /.Mexico border. 

We've done this by creating new cartel -targeting prosecutorial units; developing new procedures 
for using evidence gathered in Mexico to pro.secute gun traffickers in U.S. courts: training 
thousands of Mexican prosecutors and investigators; extraditing more than 300 defendants 
wanted by Li.S. law enforcement: successfully advocating for enhanced sentencing guidelines for 
convicted traffickers and straw purchasers; and pursuing coordinated, multi-district 
investigations of gun-trafficking rings. 

1 his is an important start, but we have more to do. And no one knows this better than the 
members of our nation's law enforcement community - including the ATF agents who testified 
before this Committee last summer. Not only did these agents bring the inappropriate and 
misguided tactics of Operation Fast and Furious to light, they also sounded the alarm for more 
effective laws to combat gtin trafficking and improve public safety. 

These agents explained that A IT's ability to stem flic flow of gun.s fi'om the United States 
into Mexico suffers from a lack of effective enforcement tools. Unfortunately, in 2011, a 
majority of House Members - including all members of the majority on this Committee - voted 
to keep law' enforoement in the dark when individuals purchase multiple semi-automatic rifles, 
shotguns, and long guns - like .AK-47s - in gun shops in four southwest-border states. 

In this new year. 1 hope we can work together to provide law enforcement agents with the 
tools they desperately need - and have requested - to protect our citizens and ensure their own 
safety. Indeed, incidents of violence against law enforcement officers arc approaching the 
highest levels we've seen in nearly two decades, even though violent crime is down overall. Last 
year, a total of 177 federal, state, and local officers lost their lives in the line of duty - a 16 
percent increase over 2010. .More than 70 of these deaths involved firearms - 20 percent more 
than the previous year. And, since the beginning of this year, an additional 14 officers have been 
killed - half of them in gun-related incidents. 

That is unacceptable. The Justice Department is committed to turning back this rising 
tide, and to protecting those who serve on the front lines. We’ve designed and implemented a 
comprehensive new training initiative to provide law enforcement leaders with the information, 
analysis, and cutting-edge tools they need to respond to a range of threats ~ including ambush- 


3 



131 


style assaults. We've developed and distributed 8,000 Officer Safety Toolkits, and have 
partnered with public safety professionals at every level to make sure our officers have the 
communications platforms neccssaiy to share information more quickly - and to more 
effectively identify and combat threats. And we’ve built a robust network of relationships - 
between state, local, and tribal authorities; key federal partners; private sector stakeholders; and 
Cabinet-level agencies - to explore new strategies, invest in critical research, and ensure that this 
vital work remains a top priority. Let me be clear; nothing is more important than ensuring the 
safety of the brave law enforcement professionals who put their lives at risk for us each and 
every day. 

But we can't make the progress we need - and that our law enforcement partners deserve 
- without your assistance and your leadership. .As I have said before. I am determined to ensure 
that our shared concerns about these flawed law enforcement operations lead to more than worn- 
out Washington “gotclia" games and cynical finger pointing. The Department of .lustice stands 
ready to work with you - not only to correct the mistakes of the past, but also to strengthen our 
law enforcement capacity in the future. 

I look forward to discussing this, and I would be pleased to answer your questions. 


4 



132 


Chairman ISSA. Before I begin my questioning, Mr. Attorney 
General, would you agree to release to us legal opinions on the con- 
stitutionality of the material that you have thus far refused to sup- 
ply the committee? 

Attorney General Holder. To the extent that there are legal 
opinions, I will look at them; and to the extent that they can be 
provided, I have no objection to that. I don’t know if these are OLC 
opinions that OLC would have an objection to providing. But to the 
extent that I can, I will make those available to you. 

Chairman IsSA. Okay. 

I will begin my questioning I guess by following up. 

Mr. Attorney General, you have — the executive branch has exec- 
utive privilege. It is narrow. It is well defined. There is case law. 
If you do not find a legitimate basis to deny us the material we 
have asked for, we will seek the remedies necessary to compel. 

Having said that, I appreciate your being here today; and I don’t 
want to waste any of your or my time on this at this point. 

Let’s go through a couple of items here. 

First of all, it is reported through discovery that we have re- 
ceived that Mr. Monty Wilkinson may have informed you of Agent 
Terry’s murder in a timely fashion. Is that true? 

Attorney General Holder. He may have. I know the murder oc- 
curred December 14th. I heard about it I think probably within 24 
hours. I don’t know if it came from Monty Wilkinson or from some 
other member of my staff, but I knew about the murder within 24 
hours of its occurrence. 

Chairman IsSA. When you were informed about that within 24 
hours, did anyone inform you or allude to the fact that the weapons 
found at the scene were from Fast and Furious? 

Attorney General Holder. No. I didn’t know about Operation 
Fast and Furious until the beginning parts of 2011 after I received 
that letter from Senator Grassley I guess at the end of January, 
and then that was about Operation Gunrunner. I actually learned 
about the Fast and Furious operation in February of that year. 

Chairman IssA. Would you make available to us through what- 
ever records you can find the name of the person who informed you 
so that we can ascertain why that individual would not or did not 
tell you what was widely known almost immediately, that in fact 
law enforcement allowed weapons walked — ^basically, that these 
were Fast and Furious weapons? The emails that we have received 
through whistleblowers show us extensively that law enforcement 
was aware and concerned about it. We would like to know why 
someone kept that from you. 

Attorney General Holder. I am not sure that anybody kept it 
from me. I mean, I found out about it, as I said, I think in Janu- 
ary-February 2011, and I am not even sure how I found out about 
it. It might have been either through a letter I received from Sen- 
ator Grassley on February 9th — I am not sure if it was contained 
in there. There were certainly media reports about it in February. 
Again, I am not sure exactly how I found out about the term “Fast 
and Furious.” 

Chairman IsSA. Would it be fair from your own knowledge to say 
that neither Lanny Breuer as head of the Criminal Division nor 



133 


Jason Weinstein did anything to stop the program after they 
learned of what it was about? 

Attorney General Holder. Stop the program 

Chairman ISSA. Fast and Furious, prior to Brian Terry’s death. 

Attorney General Holder. I mean, they both admitted that they 
were aware of Operation Wide Receiver and never connected the 
techniques that were used in Wide Receiver to Operation Fast and 
Furious and, as a result, did not take any action in that regard; 
and both have admitted that that was a mistake. 

Chairman IsSA. Let’s go through this. I think in my limited time 
I want to make sure that we do deal with Wide Receiver versus 
Fast and Furious. 

As of today, do your law enforcement authorities such as the 
ATF have the ability to see a straw purchase — ^believed straw pur- 
chase — and, rather than arrest them at the door with no evidence, 
follow them to the next location? 

Attorney General Holder. See them 

Chairman IssA. In other words, does law enforcement have the 
ability to follow suspected gun traffickers with the weapons in their 
car from location to location? 

Attorney General Holder. And keep them under constant sur- 
veillance? 

Chairman IssA. Yes. 

Attorney General Holder. They certainly have that capacity. 

Chairman IssA. Okay. So as far as we have been reported, every 
piece of evidence shows that in Wide Receiver every effort was 
made, unsuccessfully in many cases, which is one of the things that 
concerns us, to follow the weapons. To your knowledge, was there 
ever an order under Wide Receiver to abandon following the weap- 
ons and let them walk? 

Attorney General Holder. Well, I would say, you know, during 
the early — as I have seen more on Wide Receiver as we have pro- 
vided materials 

Chairman IsSA. A yes or no would be a good start, Mr. Attorney 
General. Do you know of any time in which people were ordered 
to peel off and let the guns walk under Wide Receiver? 

Attorney General Holder. I am not sure about whether they 
were ordered to or not, but I do know that in the early phases of 
the investigation observations were made of people buying guns 
and decisions made not to surveil them after those purchases were 
made. And, as a result, 100, 400 — I am not sure exactly what the 
number is — of guns walked; and there were complaints raised by 
people connected to the investigation about the fact that guns were 
walking in Operation Wide Receiver. 

Chairman IsSA. Since it was never allowed to simply let known 
straw buyers, known guns fall into illicit criminals’ hands, have 
you taken any action to fire anyone or discipline anyone from Oper- 
ation Wide Receiver? 

Attorney General Holder. Operation Wide Receiver occurred in 
the prior administration. I don’t think that 

Chairman IssA. We are not talking about political appointees. 
We were talking about people who would transcend the transition. 
Have you, to your knowledge, disciplined anyone from Wide Re- 
ceiver? 



134 


Attorney General Holder. No, I have not. 

Chairman ISSA. Have you disciplined anyone from Fast and Furi- 
ous? 

Attorney General Holder. No, I have not, as yet. As yet. There 
have been personnel changes made at ATF. We obviously have a 
new U.S. attorney in Arizona. We have made personnel switches at 
ATF. People have been moved out of positions. 

I am certainly going to wait and see what I get from the Inspec- 
tor General, the report that we have from the majority. I don’t 
know if the minority is going to produce — from the minority. I don’t 
know if the majority is going to produce a report. And I will be tak- 
ing all that into consideration, in addition to all these things I am 
able to find out on my own, and make personnel changes as I think 
they are appropriate. 

Chairman IsSA. My time has expired. I will say that I don’t think 
the minority report is going to do you a whole lot of good since it 
seems to say more or less nothing happened. 

With that, I recognize the author of the minority report, Mr. 
Cummings, for his round of questions. 

Mr. Cummings. Thank you very much, Mr. Chairman, and I re- 
spectfully disagree with what you just said. Our staff worked very 
hard on that report. And, by the way, it is based upon the evidence 
that the majority presented, that the majority presented. You all 
heard the same evidence that we heard, and we basically looked at 
the facts and presented them. 

Mr. Attorney General, I want to thank you again; and I am sorry 
my colleagues on the other side of the aisle have made completely 
unsubstantiated allegations against dedicated and hardworking 
FBI agents, DEA, officials and others. And I want to thank all of 
them for what they do every day to protect the American public. 

I face a real challenge today. I have to ignore the political side- 
show and keep my focus on the very real problems that led to these 
flawed operations. 

As our report explains, we have no evidence that you approved 
gun-walking. We have no evidence that you knew about it. The 
same can probably be said of former Attorney General Mukasey. I 
assume that if either of you actually heard that gun-walking was 
taking place, you would have put a stop to it. 

As I review this report from my staff, however, I get a little bit 
upset. First I get upset that this happened. Hundreds of weapons 
went to criminal networks on both sides of the border because 
agents did not arrest suspects when they could have. 

I also get upset that this went on for so long. We identified four 
different operations in Phoenix over 5 years across two administra- 
tions involving hundreds of weapons, and these weapons put law 
enforcement agents in danger. 

In your written statement you noted that 177 officers lost their 
lives in the line of duty last year, and 70 of those deaths involved 
firearms. As the country’s chief law enforcement officer, what is 
your reaction to the fact that these operations continued for so 
long? 

Attorney General Holder. Well, it bothers me a great deal when 
one sees the death toll that we have seen in Mexico, 40-50,000 peo- 
ple have been killed over the last 5 years, 64,000 guns traced from 



135 


the United States into Mexico, and that is traced, which means 
there are probably substantially greater numbers of guns that have 
gone from the United States into Mexico. And the concern I have 
is that with these guns going into Mexico and cartel activities that 
reach into the United States that at some point these guns will be 
trained on law enforcement officers. 

Though we have seen an historic drop in the crime rate to 40- 
and 50-year lows, we have seen a rise over the last 2 years in the 
number of police officers. Federal enforcement agents, who have 
been killed. I have been to far too many funerals, I have had to 
write far too many letters, talk to far too many widows about the 
death of brave people who have died in service to their country, 
and we have to do something about it. We have to. 

Mr. Cummings. The ATF Deputy Director William Hoover, an ex- 
perienced career ATF officer, became concerned in 2010 about the 
number of weapons involved in Fast and Furious. He told us he did 
not know about gun-walking, but he ordered an exit strategy based 
on his overall concerns. He told the Phoenix office to end this oper- 
ation within 90 days and bring indictments, but they didn’t do it. 
They did not like ATF headquarters running their cases, and they 
continued for months to encourage gun dealers to sell to straw pur- 
chasers without arrest. 

During his interview, Mr. Hoover also told us that he never told 
anyone at the Department of Justice about his general concerns 
with the operation or his order for an exit strategy, and our inter- 
views with Justice Department officials confirm that. 

So I have two questions. I understand that field agents don’t like 
bureaucrats in Washington looking over their shoulder, but how 
can a field office effectively ignore the directives of ATF head- 
quarters in this way? And, second, what specific reforms are now 
in place or should we consider to ensure better coordination and 
oversight? 

Attorney General Holder. Well, there is a tension between the 
field and headquarters. I have been in the field, I have been in 
headquarters, and depending on where I sit, I think greater wis- 
dom exists in that place. We have to come up with ways in which 
we make clear what the policies are. 

After I heard about gun-walking — I don’t know about Attorney 
General Mukasey, but after I heard about gun-walking, I was very 
firm. I had a directive sent out by the Deputy Attorney General to 
the field that indicated that those kind of techniques were simply 
unacceptable, were not to be used by the Department of Justice. 

Now, Todd Jones, the Acting Director at ATF, has instituted a 
number of reforms. I want to say that the report that you have put 
out contains at the back a number of suggestions with regard to 
reforms, and I think — I don’t remember what the number is, but 
a substantial number of those have been instituted by Todd, among 
them coming up with ways in which we ensure that the trafficking 
of guns, the gun-walking, does not occur, that more levels of review 
have to occur. 

I think also significant, given the fact that Agent Dodson is here, 
is that we have to have ways in which at ATF people who have 
concerns about ATF operations have a greater ability, don’t have 
any concerns for their careers about surfacing things within ATF, 



136 


so that the leadership at ATF and ultimately back at headquarters 
can take the necessary corrective actions. But I would salute the 
minority report for the management changes and policy changes 
that are included in that report. 

Mr. Cummings. Thank you very much, Mr. Chairman. My time 
is up. 

Chairman ISSA. Thank you. 

We now go to the former chairman of the full committee, Mr. 
Burton, for 5 minutes. 

Mr. Burton. Nice seeing you again. 

Attorney General Holder. It has been a while. 

Mr. Burton. Yes, it sure has. 

You know, it is very interesting, Mr. Attorney General, for 6 
years I remember when you were with Janet Reno and the Deputy 
Attorney General, and we fought to get documents, and we had a 
difficult time. You have said here today that there are certain docu- 
ments that you will not give us because of the separation of pow- 
ers. Now, we have been down that road before and we got them, 
but we had to threaten that we would have a contempt citation in 
Congress. This is not just during the Reno administration but dur- 
ing Gonzales as well. And we got the documents. So I think you 
are hiding behind something here that will not stand up. So you 
ought to give us the documents. 

Now, we received 6,000 documents with redactions. And I know 
that is an old school policy, you know. Send them up here and cross 
out everything of relevance and let us try to figure out what it is. 
And you dump them on us on Friday night so that the staff here 
can’t do anything with them unless they stay over the weekend and 
work 10, 12 , 14 hours. I have been down that road, too. 

Now, there are 93,000 documents — 93,000 documents that you 
are not giving this committee; and you are saying, well, the separa- 
tion of powers prohibits you from doing that. That is baloney. That 
is just baloney. And I have worked with you for 6 years — well, I 
wouldn’t say “with” you. I have worked for 6 years when you were 
the Deputy Attorney General. 

So why don’t you give us those documents? The conclusion that 
I come to is there are some things in there that are being hidden 
that you don’t want us to see. I don’t know if it involves you or 
some other ATF agents or some other members of the Justice De- 
partment. But this committee is the Oversight Committee, and we 
have every right under the Constitution to check on what you are 
doing. We are supposed to oversee the executive branch, and you 
are part of that branch. 

So for you to deny this committee anything like that is just dead 
wrong, and I don’t think you are going to find any way that you 
can do it, and I would urge the chairman to move a contempt cita- 
tion against you if you don’t give them to us. 

Now, let me just ask you a couple of questions. 

Why won’t you let Patrick Cunningham, the head of the Criminal 
Division in Phoenix, and Emory Hurley, a line prosecutor, why 
won’t you let them come and talk to the committee? If you can’t 
let them do it publicly, you ought to let them do it in a private set- 
ting. Why won’t you let them do that? 

Attorney General Holder. Well, a couple of things. 



137 


Just for the record, I was only a Deputy Attorney General for 4 
years. It seemed like 6. 

Mr. Burton. Okay. Well, 4 years. It seemed like longer than that 
for me. 

Attorney General Holder. All right, longer than 6 for me as well 
then. 

Chairman ISSA. Would the gentleman yield? 

Mr. Burton. I would he happy to yield. 

Chairman IsSA. Since Mr. Cunningham has now taken the Fifth, 
I would say none of us have that direct authority. 

But to add to the gentleman’s question, would you make all testi- 
mony and information on Mr. Cunningham immediately available 
to us unredacted so we may evaluate to a great extent what you 
know about why he took the Fifth? 

Go ahead. I yield back. 

Attorney General Holder. Well, in terms of making available — 
I am not sure where you get the number of 93,000 documents. 
Those redactions that have occurred are only because there are 
things that are either not relevant or are protected by grand jury 
secrecy rules, court orders that have sealed material. We have pro- 
vided to this committee material that is relevant and only redacted 
that which is necessary, and there is a key that tells you why 
something was redacted. 

With regard to the two people you have talked about. Hurley — 
Mr. Hurley is a line prosecutor, and we never make line prosecu- 
tors available. That is every Attorney General that I know has fol- 
lowed that policy. Mr. Cunningham no longer works in the Justice 
Department, and so I don’t have the ability to compel him to tes- 
tify. He left the Justice Department I think this past Monday or 
last Friday. 

Mr. Burton. You asked him to leave, I guess, didn’t you? 

Attorney General Holder. No. 

Mr. Burton. You didn’t? 

Attorney General Holder. No. 

Mr. Burton. He left on his own after he took the Fifth Amend- 
ment? 

Attorney General Holder. He had planned to leave well before 
he invoked his Fifth Amendment privilege to take a job in private 
practice — or at a company. 

Mr. Burton. As I understand it, the IG has 80,000 documents, 
and you have given us 6,000. So whether we are talking about 93 
documents or 80,000, this committee has asked for those and has 
not gotten them, and it appears as though we are being 
stonewalled and there is something that is being hidden. 

Let me ask you another question: Have you apologized personally 
to the whistleblowers who were in effect called liars by those with- 
in your own agency, when we now know they were telling the truth 
and we wouldn’t know any of this today if they hadn’t come for- 
ward? I am talking about people like John Dodson, who is here 
today, and Peter Forcelli. Have you apologized to them personally? 

Attorney General Holder. I have not apologized to them. 

I spoke to Mr. Dodson, Agent Dodson, at the beginning of the 
hearing when the chairman was kind enough to bring him by. I 



138 


gave him my telephone number and told him to give me a call if 
he wants to talk about the way 

Mr. Burton. Give you a call? 

Attorney General Holder. Give me a call. 

Mr. Burton. Why don’t you call him and apologize? Because you 
are the Attorney General of the United States, and you are in 
charge of these people, and they were in effect called liars, and 
they were telling the truth. And I think, as the head of that agen- 
cy, it should be your responsibility to say hey, guys, I am sorry that 
you were called liars when you did tell the truth. 

Attorney General Holder. I am not aware of them being called 
liars. 

But, beyond that, what we have tried to do is treat them with 
respect. I don’t think any adverse action has been taken against 
any of the people who came here and testified before this com- 
mittee. 

To the extent that there are concerns that Mr. Dodson has, I will 
be more than glad to talk to him about them. I will note, however, 
that he has had a meeting with the Acting Director of ATF and I 
think he has expressed whatever his thoughts were, at least at 
that time. If that has not been sufficient, as I said, I am more than 
glad to have a conversation with him. 

Mr. Burton. I wish you would call him. 

Thank you, Mr. Chairman. 

Chairman IssA. The gentleman’s time has expired. 

Did you want to answer on the Cunningham question of mate- 
rials in your possession now that he has left under this cloud? 

Attorney General Holder. Yes. I wouldn’t say it was “under a 
cloud”. But, anyway 

Chairman IsSA. Taking the Fifth is not a cloud? 

Attorney General Holder. I don’t know why he took the Fifth. 
There are a variety of reasons, not the least of which was that ap- 
parently there was a report issued by this committee or a state- 
ment by this committee that he had acted inappropriately. I don’t 
know why he invoked his Fifth Amendment privilege. That is cer- 
tainly his right as an American citizen. 

We have provided already 153 documents with regard to Mr. 
Cunningham that entails about 387 pages of material. We will con- 
tinue to look at that material; and to the extent there is informa- 
tion that is relevant, we will provide it to the committee. 

Chairman IsSA. I thank you. 

We now recognize the other former chairman of the committee, 
Mr. Towns, for 5 minutes. 

Mr. Towns. Thank you very much, Mr. Chairman. 

This committee has not obtained one shred of evidence that 
would contradict your testimony, Mr. Attorney General, not one 
witness, not one document, not one email; and still some continue 
to suggest that you did personally authorize gun-walking and the 
tactics in Operation Fast and Furious. I hope this will be the last 
time you have to answer this question: Did you, Mr. Attorney Gen- 
eral, ever authorize gun-walking? 

Attorney General Holder. I did not, and I will say it that way. 
I am from New York, and I would say it in a different way, but 



139 


I am going to have great respect for this committee and simply say 
I did not. 

Mr. Towns. I am from New York, so I would understand your 
answer. And, of course, my colleague next to me would, also. 

Did you ever authorize the controversial tactics employed in Op- 
eration Fast and Furious, the non-interdiction of illegal firearms, 
in order to build a bigger case? 

Attorney General Holder. Not only did I not authorize those tac- 
tics, when I found out about them I told the field and everybody 
in the U.S. Department of Justice that those tactics had to stop, 
that they were not acceptable, and that gun- walking was to stop. 
That was what my reaction to my finding out about the use of that 
technique was. 

Mr. Towns. To your knowledge, did Deputy Attorney General 
Gary Grindler or Assistant Attorney General Lanny Breuer ever 
authorize gun-walking or the tactics employed in Fast and Furious? 

Attorney General Holder. To my knowledge, they did not. 

Mr. Towns. Let me ask this: If you had been asked to approve 
of gun-walking, what would you have done or said? 

Attorney General Holder. No. Simple. 

You know, there are questions that you have in public corruption 
cases when you are trying to decide are you going to let the money 
walk. There are questions that you have in narcotics cases if you 
are going to let the drugs walk so that you can make a case. You 
have spirited conversations about that, and I can understand how 
there will be differing opinions. 

The notion that you would let guns walk in a firearms case is 
for me absurd, absurd, and it was the reason why I said it cannot 
happen. While we stopped it, it is not DOJ policy, and anybody who 
does it now is breaking a direct directive from the Attorney Gen- 
eral of the United States. 

Mr. Towns. So if you had been asked or told by ATF or the U.S. 
Attorney’s Office about the tactics in Operation Fast and Furious, 
how would you have acted or responded? 

Attorney General Holder. In the same way that I did I think 
in early March 2011, by telling everybody in the Justice Depart- 
ment, don’t do this. It is unacceptable, it is stupid, it is dangerous, 
and not something that this Department of Justice can ever do. 

Mr. Towns. You know, I want to thank you for coming up and, 
of course, thank you for your testimony. I think it is pretty clear 
that the attempts to tarnish your reputation with these unsubstan- 
tiated allegations is pure politics and this definitely has a political 
flavor, and that is unfortunate. 

So, on that note, I will yield back. 

Chairman ISSA. I thank the gentleman. 

We now go to the gentleman from North Carolina, Mr. McHenry, 
for 5 minutes. 

Mr. McHenry. Thank you, Mr. Chairman. 

Thank you. Attorney General Holder, for being here. 

Listening to the answer you had from the former chairman, it 
seems to me when you see that folks did not follow policy, did not 
follow your directives, and we are here 13 months after you found 
out that an agent was murdered for policies that you did not sup- 
port, and we find out you have not fired a single individual, we find 



140 


out that you have not rebuked any staff memhers — heck, you 
haven’t even put a letter in people’s personnel files saying that 
they on their watch acted and an agent was murdered. That is ab- 
solutely absurd from this side of the dais. So I ask you, why have 
you not taken steps to make sure this doesn’t happen again? 

Attorney General Holder. Well, I have taken steps. Certainly 
with regard 

Mr. McHenry. Yes, you told people you were mad, you were 
upset. That to me is silly. You have not taken action. You have not 
fired anybody. You haven’t changed policy. Because it is clear you 
didn’t enforce the policy before. You didn’t know — you are saying 
you didn’t even know about it. So it strikes me as incompetence in 
terms of management. 

Attorney General Holder. Well, I am not sure you understand 
how the Justice Department works. I didn’t express the fact that 
I was mad or that I thought it was silly. I issued a directive that 
said that the Attorney General of the United States that says this 
policy, this kind of technique, is inappropriate and should not be 
followed. 

We are still in the process of trying to determine, the Inspector 
General is trying to determine, where this policy originated. We 
know that it started probably in the ATF office in Phoenix. It was 
approved by the U.S. Attorney’s Office in Phoenix. Now, exactly 
who the people were who actually approved the technique we are 
still in the process of trying to work through. 

But that is not all that I have done. I have made personnel 
changes with regard to leadership positions. We have moved people 
around. We have instituted a series of policies now that I think are 
designed to make sure that that doesn’t happen again. 

Mr. McHenry. So an agent was murdered, and your action is to 
move people around. That seems to me to simply inconvenience 
people, not to rid them of Federal employment. 

Attorney General Holder. Well, to the extent that we find out 
who precisely was involved in this or who gave that order, I can 
assure you that, unless there is some truly compelling cir- 
cumstance, that person, those people will be removed from Federal 
service. 

But that is not all we have done with regard to the murder. We 
are in the process of investigating that murder, and the people who 
are responsible for it will be held accountable, and I expect that 
you will hear something about that relatively soon. 

Mr. McHenry. Relatively soon. Thirteen months later. 

Attorney General Holder. No. Well, these matters 

Mr. McHenry. It is 13 months after the fact, sir. That is what 
I am saying. At what point are you going to take action? 

Attorney General Holder. As soon as we are in a position to 
make arrests and hold people accountable, put them in a court of 
law and try them with maximum charges. These are not cases 

Mr. McHenry. Is that likely this year? 

Attorney General Holder. I think that is likely this year. 

Mr. McHenry. Is it likely in the next 6 months? 

Attorney General Holder. Yes, I think it is likely in the next 6 
months. 

Mr. McHenry. Could you see this happening this quarter? 



141 


Attorney General Holder. When does this quarter end? I don’t 
know. 

Chairman IssA. March 31st. 

Attorney General Holder. It is possible. 

Mr. McHenry. It is possible. Okay, 13 months later we have the 
possibility of somebody actually being punished for an agent being 
killed. This is absolutely absurd. 

Mr. Chairman, I yield the balance of my time. 

Attorney General Holder. No, it is not absurd. It takes time to 
build a case that you are going to be able to take before a jury with 
a high standard of proof, convict somebody, hold them accountable. 
You don’t want to go into court and put yourself on a time limit 
and at 3 months say let’s take whatever we have and get into court 
and, because some critics are going to say we are not acting fast 
enough, end up losing the case and then the people who are re- 
sponsible for this heinous act are not held accountable. 

We go into court when we think we have cases that are ready 
to go. I am not putting any pressure on people in that regard, other 
than to do it as quickly as they can but to do it as thoroughly as 
we can so that we bring the best possible case that we can. 

Chairman IsSA. I thank the gentleman for yielding. 

Quickly following up — no, it isn’t — Mr. Lanny Brener is not going 
to be criminally indicted or anything else, but when Mr. McHenry 
was asking about holding people accountable, he was really asking 
about people that work for you. Now, is your management style a 
hands-off or is it a hands-on? Do you want to know what is going 
on or do you want others to handle it and brief you at relatively 
high level? 

Attorney General Holder. I think I have a hands-on style. 

Chairman IsSA. If you have a hands-on style, have you read any 
of or been fully briefed on any of the wiretaps, including the March 
10th wiretap in this case? 

Attorney General Holder. These wiretaps are very voluminous, 
read well kind of things. I have not read them. 

Chairman IssA. Okay. Kenneth Melson told us — and this has 
been publicly reported — that in fact he was sick to his stomach 
when he discovered it. This was approved by Lanny Brener’s office. 
Indications are that your chief deputy knew about this. I mean, it 
comes through Criminal Division at some point. 

The question is, will you or isn’t it appropriate that you know 
about these wiretaps so that you could know what former ATF, act- 
ing ATF Director knew, which was these wiretaps are reasonably 
believed to be sufficient in what they disclosed, that many parts of 
this operation should have stopped, should have stopped sooner, 
and that people were saying that at DEA and other places, and 
that the Office of Criminal Division, Lanny Brener’s division, if you 
will, knew or should have known that? 

That is the kind of thing Mr. McHenry was asking about, is hold- 
ing people accountable, whether they are career professionals or po- 
litical appointees. Are you prepared to do any of that prior to the 
Attorney General’s final report? Because you haven’t done any so 
far, as far as we can tell. 

Attorney General Holder. I think you mean the Inspector Gen- 
eral’s report. 



142 


Chairman ISSA. I am sorry, the Inspector General’s. I am sorry, 
Mr. General. I keep confusing the two generals. 

But, yes, I very much note your Inspector General’s report, which 
seems to be the reason for the delay in executing on disciplinary 
actions. 

Attorney General Holder. Well, I mean, you have packed a lot 
into that question. 

I think, first off, there is no indication that Mr. Breuer or my 
former deputy were aware of the tactics that were employed in this 
matter until everybody I think became aware of them, which is like 
January-February of last year. The information — I am not at this 
point aware that any of those tactics were contained in any of the 
wiretap applications. 

I will say this: To the extent that those wiretap applications have 
been shared, that is in direct violation of court orders, and if I 
find — if I find that somebody in the U.S. Department of Justice has 
shared the contents of a wiretap application, that will be something 
that will have to be looked at. 

There is a wide variety of things, information that we can share, 
but I am not going to go against sealing orders by a court with re- 
gard to a wiretap application, and anybody who leaks that material 
or submits that material for people to examine does so at their 
peril. 

Chairman IssA. I appreciate that. For the record. Members of 
Congress are not covered by that prohibition. Members of Congress 
are not in any way under that order. In fact, if we receive the infor- 
mation from whistleblowers, just like the press, it is in fact legiti- 
mate for us to know it and to act on it in our investigation. We are 
not covered by that Federal Court order. 

Your law enforcement people related — before I yield, did you 
want to respond after you got a note on that? 

Attorney General Holder. With all due respect, Mr. Chairman, 
I think that direction that you just said about the media and Con- 
gress and court orders is really incorrect, and I think you act at 
your peril if you think that is the truth. 

Chairman IssA. Well, certainly we would say that the release of 
information from our testimony of Kenneth Melson that appears to 
have been leaked to your people also would be inappropriate, but 
we will get to that at another time. 

With that, we recognize the gentlelady from New York for 5 min- 
utes, Mrs. Maloney. 

Mrs. Maloney. Thank you. I would like to respond to my good 
friend and colleague, Mr. McHenry’s statement that the AG had 
not responded to Agent Terry’s death. He responded immediately, 
and has expressed his concern for the other agents that are being 
killed at a higher rate than ever in our history. 

Mr. McHenry. If the gentlelady will yield. 

Mrs. Maloney. No, I will not yield. I will not yield. 

And not only did he do that, he immediately took swift action to 
stop gun walking, which did not happen in the prior administra- 
tion, and established reforms to prevent this type of flawed oper- 
ation from ever happening again. He further called for — and we 
could all help him do this, particularly the Republican majority — 
to confirm a permanent ATF director. That would help more than 



143 


anything. He also called for a Federal firearms trafficking statute. 
He called for appropriate funding, for the ATF to do its job and in- 
crease penalties for straw purchasing. So these are some of the con- 
crete actions that he has taken in response to that tragic death. 

And once again today, this investigation continues on its vast 
and curious mission to fix the symptoms rather than the cause of 
so much deadly gun violence on the southern border. And this com- 
mittee has unfortunately refused time and again to examine the se- 
rious underlying problem that so heavily contributed to a series of 
ill-conceived, fatally flawed programs, such as Fast and Furious. 
And as this committee well knows, and everyone should know in 
America, Fast and Furious was not the first, but the fourth inves- 
tigation to use gun walking as a tactic to go after bigger fish. And 
the gun walking strategy dates back to 2006, the prior administra- 
tion. And just to underscore how vast and curious this investiga- 
tion is, let’s review that 

Is this the sixth occasion, Mr. Attorney General, that you have 
been before Congress on this issue? 

Attorney General Holder. It’s the sixth time I have testified 
about Fast and Furious. 

Mrs. Maloney. This is the sixth time he has testified on Fast 
and Furious. And he handed out a list of what his responsibilities 
are, which I would like him to be able to do. And I want to add 
to that one that I’m grateful for, and that is implementing the 9/ 
11 health and compensation bill, on which your whole unit is doing 
such a brilliant job. Thank you so much. We appreciate it. 

Also, over 6,400 papers and ongoing IG review, all of this is tak- 
ing place. But in your testimony today, I appreciated your tribute 
to the courageous agents that work in the ATF. And you spoke 
about the whistleblowers and how courageous they are. And I 
wanted to point out the testimony of Special Agent Peter Forcelli, 
who called the current laws against gun trafficking “absolutely 
toothless.” And he went on to testify that there was no enforcement 
and he went on and said all kinds of things. 

Do you agree that there’s no enforcement, that law enforcement 
really doesn’t have the tools to do the job to crack down on gun 
trafficking? 

Attorney General Holder. I really agree with Agent Forcelli. I 
mean, there’s really a need, I believe, for a Federal firearms traf- 
ficking statute. We need increased penalties for straw purchasers 
who engage in that kind of inappropriate activity. And I think that 
we would like to work with Congress so that we can put in place 
these measures that will ultimately help ATF and the Federal Gov- 
ernment be more effective in the fight that we all say we want to 
have, which is to stop the flow of guns into Mexico. 

Mrs. Maloney. After that hearing with Special Agent Forcelli, I 
worked with Ranking Member Cummings and also with Congress- 
man Towns and Congresswoman Norton, and we drafted a bill 
which is to crack down on illegal trafficking conduct, not law-abid- 
ing gun owners, but would go after those illegal activities. And we 
should get busy working on helping to give them the tools. We 
know that we do things that are far more helpful than going on a 
politically motivated fishing trip, which I feel this is what we are 
doing today. And the real agenda of this investigation does not aid 



144 


or honor those who risk their lives every day, working to keep 
Americans safe from gun violence. 

And I must say that this is getting out of hand. The AG’s testi- 
mony that over 60,000 guns, I believe you said, have been traced 
in Mexico that are directly tied to having been gotten there from 
America. And I must say that one chilling example was an ad that 
al Qaeda put on their Web site saying. Go to America. Get guns. 
It’s so easy to do. Get guns for your illegal activities. 

So I want to congratulate you for your vision and mission of 
wanting to give law enforcement the tools to get the job done, to 
have a Federal statute banning gun trafficking with increased pen- 
alties. 

Chairman IssA. Would the gentlelady yield? 

Mrs. Maloney. Yes. I most certainly will. 

Chairman IsSA. I join with you in believing that Andrew Traver 
who, I believe, is the November 2010 designate should in fact be 
given an up-or-down vote, should, in fact, be given an opportunity 
to be confirmed. I would note that he wasn’t put up. No one was 
put up for the first 2 years of the Obama administration. And it’s 
sad that they didn’t have somebody in the queue earlier. 

I thank the gentlelady for yielding. 

Mrs. Maloney. I want to thank the chairman for supporting the 
confirmation, and you certainly can help us make that happen. 

Chairman IssA. We’ll do what we can. 

Mrs. Maloney. I appreciate that. 

Chairman IsSA. I thank the gentlelady. 

I now recognize the gentleman from Utah, Mr. Chaffetz, for 5 
minutes. 

Mr. Chafeetz. Thank you, Mr. Chairman. Thank you, Mr. Attor- 
ney General, for being here. I had an opportunity on the Judiciary 
Committee to ask you questions on December 8, 2011. I had asked 
you if you had spoken to President Obama, Secretary Clinton, or 
Secretary Napolitano. You said that you had not spoken to either 
of those three about Fast and Furious. Is that still true today? 

Attorney General Holder. With regard to Secretary Napolitano, 
yes. Secretary Clinton, yes. 

Mr. Chafeetz. I’m sorry. Secretary Clinton, you have spoken 
with her about Fast and Furious? 

Attorney General Holder. No. Well, I should say no. Secretary 
Napolitano, no. Secretary Clinton, no. And I’ve had passing con- 
versations with the President just about the fact of my testifying 
in connection with Fast and Furious. 

Mr. Chafeetz. On Wednesday, February 16th, you issued a press 
release along with Secretary Napolitano saying that you had met 
together. This is on the heels of Jaime Zapata. He had just been 
killed in Mexico. There were questions as to whether or not there 
were ties to Fast and Furious. You say that you didn’t have any 
interaction with Janet Napolitano about Fast and Furious. My 
question is about Secretary Clinton. What sort of interaction did 
you have with the State Department? 

Attorney General Holder. I’m not sure at what lower levels, if 
there was interaction between the Justice Department and people 
at the State Department. I know that I have not interacted with 
Secretary Clinton with regard to Fast and Furious. 



145 


Mr. Chaffetz. I was questioning whether or not you had actu- 
ally had some interaction, or the words Fast and Furious came up. 
You had some interaction. You said, ‘You have to understand 
something about the way Washington works.” Explain that to me 
and the interactions that your department or agency has had with 
the State Department. 

Attorney General Holder. Well, one of the things that I was say- 
ing — I was trying to say and I got cut off, was that when people 
know that I’m going to be the subject of these kinds of hearings — 
you know, six times and all that — nobody necessarily wants to get 
involved in these kinds of things or get dragged into it and then 
have some interaction, conversation that I had with them be made 
more than it is. And I understand when people don’t necessarily 
want to talk to me about Fast and Furious, knowing that at lower 
levels 

Mr. Chaffetz. You know that they’re withholding information 
from you. 

Attorney General Holder. No, they’re not. 

Mr. Chaffetz. Well, you just said that they’re not going to pro- 
vide you the information because they don’t want to drag you into 
it. 

Attorney General Holder. I said they didn’t want to have con- 
versations with me. 

Mr. Chaffetz. Isn’t that withholding information? If you can’t 
tell the boss what’s really going on, you are going to be oblivious 
to what’s going on. 

Attorney General Holder. We are talking about cabinet-level 
people. And I’m saying that the people who work under them, ei- 
ther DHS, State other executive branch agencies, are certainly pro- 
viding information to the Justice Department so that we have ac- 
cess to whatever information 

Mr. Chaffetz. And is the Justice Department providing that in- 
formation to, say, the State Department or Homeland Security? 
You may say, we’re not having face-to-face discussion which trou- 
bles me — I don’t care whether you are a Democrat or a Republican, 
the idea that you are not being informed and not having conversa- 
tions because you are afraid of coming to Congress is troublesome, 
at the least. 

Attorney General Holder. I’m not afraid to come to Congress. I 
have been here six times. 

Mr. Chaffetz. I know. But if you are not being informed so you 
purposely can claim ignorance on the issue, that’s a problem. My 
question is, at the lower level, is there an expectation on your part 
that there is interaction between these departments and agencies? 

Attorney General Holder. Well there is not only an expectation. 
I know that, in fact, there is that kind of interaction because with 
regard for instance to the death of Agent Terry, I know that DHS 
is working with the FBI, State Department and Justice. 

Mr. Chaffetz. What about the State Department? 

Attorney General Holder. State, you know, doesn’t have as di- 
rect a role. Obviously we interact with our counterparts in Mexico, 
and we talk to the State Department, inform them of contacts that 
I have. In fact, I will be speaking to the attorney general from Mex- 
ico in the latter part of — well, I guess, early this afternoon. 



146 


Mr. Chaffetz. In paragraph five of your testimony today, you 
talk about the national security crisis along the border. I guess my 
concern, Mr. Attorney General, is, you have an expectation that 
there’s interaction between the Department of Justice and the 
State Department, correct? 

Attorney General Holder. Oh, there certainly is, through the 
Merida Initiative, if nothing else. And through other ways in which 
our law enforcement components talk to one other 

Mr. Chaffetz. I am sorry. My time is so short. 

Chairman IssA. Would the gentleman suspend? Do you have a 
point of order? 

Mr. Towns. Mr. Chairman, I think that if he is asks a question, 
he should have an opportunity to answer it. I am trying to follow 
it. But the point is that without him being able to respond, what 
are we really doing? 

Chairman IssA. The gentleman’s point is valid, and I appreciate 
that both under your leadership and hopefully under mine, we 
make sure that all witnesses get to answer. 

Mr. McHenry. Mr. Chairman, may I ask for 1 additional minute 
for the gentleman? 

Chairman IssA. Without objection, so ordered. 

Mr. Attorney General, at the end of any round of questioning 
within a reasonable period of time by yourself, if you feel you have 
been unable to answer a question — and I would like you to be suc- 
cinct — we will give you the additional time at the end so you may 
answer. I do respect the fact that a Member may want to go on to 
a next question. So you may have to wait until the end to sort of 
revise and extend briefly. And with that, I mean no disrespect. The 
gentleman was fully within his rights. But I wanted to make that 
clear because the past chairman and my policy are to make sure 
that people get to make full answers, even if it’s not during the 5 
minutes. 

Mr. Chaffetz. Mr. Chairman, I would ask that without the 
starting of the clock — again, if he wants to fully answer that. With 
concern to Mr. Towns, I just want to be able to do the followup 
question. 

Chairman IsSA. The gentleman is absolutely right. The gen- 
tleman will continue. 

Mr. Chaffetz. If you want to more completely answer that, 
please. 

Attorney General Holder. I’m not sure where I was. 

Mr. Chaffetz. The interaction between you — the Department of 
Justice and the State Department on Fast and Furious, and that’s 
the concern here is Fast and Furious. 

Attorney General Holder. Right. We work together with our 
State Department counterparts on a number of things in connec- 
tion with Mexico. There is the Merida Initiative that really kind of 
is the umbrella way in which we operate in Mexico in a law en- 
forcement way. So there is a lot of contact at the lower levels and 
not so lower levels. I know our Deputy Attorney General speaks a 
great deal with his counterpart at the State Department. 

Mr. Chafeetz. My question, Mr. Attorney General, is the testi- 
mony from October 27th of this year that Secretary Clinton gave 
over in the Senate where she said, “I can tell you that based on 



147 


the information on the part of the State Department that would 
deal with this kind of issue, we have no record of any request for 
coordination. We have no record of any kind of notice or heads up.” 

How is it that the Secretary of State is saying, we’ve never been 
involved in any way, shape, or form in Fast and Furious and you 
are testifying that it’s happening on a regular basis? 

Attorney General Holder. Well, you have to put this in the ap- 
propriate context. What I’m saying is that we interact with them 
in a number of ways. Now Fast and Furious might not be a pri- 
mary thing that we are talking about with the State Department. 
We are certainly working more closely with DHS when it comes to 
Fast and Furious. But those kinds of things are discussed. It might 
not be, you know, a primary thing that exists between a topic of 
conversation between State and 

Mr. Chaffetz. And I guess that’s the concern, Mr. Attorney Gen- 
eral. We have 1,500 weapons. We’ve got 300 dead people in Mexico. 
We have a dead U.S. agent. We’ve had an untold number of hear- 
ings and discussions and press reports. And yet, you had the people 
at the highest level of the government saying, well, we don’t talk 
to each other because our people don’t tell us information because 
we’ve got to remain ignorant because we’re going to have to testify 
and they don’t want to get me involved. And at the same time, 
you’re telling me that they are interacting with the State Depart- 
ment on a regular basis, and the State Department, the Secretary, 
is telling us, it isn’t happening. And Janet Napolitano is saying 
very similar things at the Department of Homeland Security. If 
we’re going to solve this problem and make sure it never happens 
again, we have to solve these challenges. And I have no confidence 
that you’ve addressed it or offered anything to actually solve it. 

I yield back. 

Chairman IssA. The gentleman’s time has expired. Did the gen- 
tleman want to follow up? 

Attorney General Holder. I’m not sure about the context in 
which that remark was made by Secretary Clinton, but I can tell 
you that when it comes to the issue of violence in Mexico, the prob- 
lem of guns going to Mexico, we are joined with our partners at the 
State Department 

Mr. Chaffetz. Mr. Chairman, Mr. Chairman, can I read the 
question? 

Chairman IssA. Does the gentleman want the question read 
back? 

Mr. Chaffetz. No. The question that Secretary Clinton got. You 
asked a legitimate question. I don’t know what context Secretary 
Clinton asked 

Chairman IsSA. The gentleman will suspend. If you make that 
question available to the Attorney General’s staff so they can brief 
him, we will return to that out of order to get an answer. But I 
think, in fairness, we’ve given sufficient time. If you will make it 
available to staff, we’ll make sure we get to it before the end of the 
hearing. 

With that, we go to the gentlelady from the District of Columbia, 
Ms. Norton, for 5 minutes. 

Ms. Norton. Thank you, Mr. Chairman. Mr. Chairman, I don’t 
know if conversations with the Secretary of State, with Secretary 



148 


Clinton, or Secretary Napoli tano are of major importance here. But 
I do know this, that after calling the Attorney General of the 
United States six times before the Congress, I think the public 
would have expected that we would have begun to talk about rem- 
edy by this time; and yet there has been no remedy to give the Jus- 
tice Department the tools it needs to prosecute straw purchasers or 
gun trafficking. But here we go again with the sixth hearing. 

Mr. Attorney General, I want to commend you for the changes 
you have made, the multiple changes you have made while this 
matter was unfolding and the facts were coming forward, recog- 
nizing full well that until you get the inspector general’s report, 
particularly considering that this is the Justice Department, to pro- 
ceed without due process would be fairly unseemly. You have to 
understand that when there’s an issue like this and it was very im- 
portant because of the death of an agent, there is an incentive for 
the committee, if it can get a hold of a highly placed government 
official, to call on as much as you can because with him comes the 
press and the public. 

My concern, I must say, for the Attorney General today, who has 
foreign and domestic matters of great moment on his plate, that at 
least a remedy come out. And we certainly haven’t seen anything 
even approaching that. 

I would like to go through the 5 years of gun walking because 
they all get merged. We have 3 years of gun walking, or so-called 
gun walking in the Bush administration, 5 years total, two in this 
administration, beginning with the Arizona U.S. attorney Paul 
Charlton. Now we haven’t had the opportunity to have him before 
us. But the problem emerged out of his office, and with warnings, 
apparently, in his office at that time, that there were real issues 
that the ATF — at least his legal counsel raised issues, including 
what he called moral objections. 

Now Mr. Charlton, we do know — even though we haven’t had the 
opportunity to speak with him — was briefed and continued to allow 
hundreds of guns to walk across the border to Mexico. The noto- 
rious Hernandez case arose during the Bush administration when 
the effort of coordination failed and yet the gun walking continued. 

Now we come to this administration. When you became Attorney 
General in 2009, were you aware that ATF had this long history 
of gun walking in its Phoenix office? 

Attorney General Holder. No. I didn’t become aware of gun 
walking at all until the beginning of 2011. 

Ms. Norton. Mr. Attorney General, if every attempt at coordina- 
tion — and remember, Mr. Hernandez was never arrested. Those au- 
thorities were never — no one was ever taken into custody. But if 
every attempt at coordinating fails, do you think the agent should 
have stopped authorizing further attempts to coordinate between 
Mexico and the United States and allow the gun walking to pro- 
ceed? 

Attorney General Holder. Do I think they should have allowed 
that? 

Ms. Norton. Do you think that given the repeated attempts of 
failed coordination that the agents should have stopped authorizing 
it or simply continued to allow further attempts, even as they saw 



149 


the attempts of coordination fail with no arrests being made on the 
Mexican side? 

Attorney General Holder. Yeah. I think both experientially, 
based on what you have noted, I think there was no basis for a con- 
tinuation of gun walking. But then even conceptually, as I think 
I testified before, the notion that you would let guns walk is simply 
not something that I think is a sound law enforcement technique. 

Ms. Norton. So when does it become gun walking, Mr. Attorney 
General? 

Attorney General Holder. When you have the ability to arrest 
somebody for some firearm transaction that they have engaged in 
and you make the determination not to make the arrest, and then 
they proceed from that site, and you don’t surveil them, you don’t 
take any kind of affirmative action, and you allow that person who 
has committed a firearms offense to simply walk away with the 
firearm. That, from my perspective, is gun walking. And concep- 
tually, experientially, it is simply not a good thing to do. 

Ms. Norton. That should have stopped even before even this ad- 
ministration took office. 

Attorney General Holder. Sure. I think so. 

Chairman ISSA. I thank the gentlelady. I would note for the 
record that the Attorney General has testified as to Fast and Furi- 
ous on November 8th before the Senate, on December 8th before 
the House. The other previous testimonies were not on the subject 
of Fast and Furious. And he was not briefed and able to answer 
it properly during those times. I just wanted to make sure. This is 
also the first time before our committee. So Judiciary, quite frank- 
ly — and particularly in the House — has not taken the lead the way 
this committee has on both sides of the aisle. 

Attorney General Holder. If I could just maybe correct the 
record 

Chairman IssA. Of course. 

Attorney General Holder [continuing]. I certainly did speak in 
those — the number five or six is, in fact, correct. 

Chairman IssA. The times that you were asked, not the times 
you were brought to answer questions that were prepared. 

Attorney General Holder. Whether it was Senate Appropria- 
tions, Senate Judiciary, I was asked questions about Fast and Furi- 
ous and answered those questions. 

Chairman IsSA. With that, the next gentleman will be the gen- 
tleman from Michigan, Mr. Walberg, for 5 minutes. 

Mr. Walberg. Thank you, Mr. Chairman. And thank you Mr. At- 
torney General, for being here today. 

I’m tempted to ask your opinion on former Penn State coach Joe 
Paterno. It might be an interesting conversation, but we don’t have 
time for that in the questioning. But I would state that Joe Paterno 
reported allegations of child molestation to his superiors but did 
nothing else because he didn’t want to jeopardize university proce- 
dure. Jason Weinstein, a senior official in the criminal division, 
knew about gun walking as early as April 2010. After a single 
meeting with ATF about it, he then failed to follow up or take ac- 
tion. Joe Paterno, a legend in his sport, and yet he was 
unceremoniously fired. Weinstein continues on in his current posi- 
tion even though Fast and Furious has held deadly consequences. 



150 


most importantly, to Agent Brian Terry, a proud son of Michigan, 
my State. 

My question for you is, what’s the difference between the case of 
Joe Paterno at Penn State and the Justice Department under your 
leadership? 

Attorney General Holder. Well, I’m not going to get into the 
Paterno case. I will talk about Jason Weinstein. He knew about 
wide receiver and he told Mr. Breuer about it. He met with ATF. 
He has indicated that he did not know about the tactics, the inap- 
propriate tactics, the gun walking tactics involved in Fast and Fu- 
rious until later on and didn’t connect those tactics with the ones 
that were used in wide receiver and has admitted that what he did 
was a mistake and has indicated that he was, you know, that he 
failed in not making that connection. 

Mr. Walberg. And so he continues on, as do other senior officials 
moved around as chessmen on a board with no consequences of a 
significant nature at this point in time, no admission, other than 
now when brought on the carpet and brought into the public life 
that this thing has gone wrong, was set up to go wrong and, frank- 
ly, I believe was set up to go wrong in order to deal with Second 
Amendment liberties of law-abiding citizens and pushing into a 
perception that it was a problem of the Second Amendment as op- 
posed to law enforcement. And more importantly, Mr. Attorney 
General, your oversight of an agency, of a department, of individual 
leaders in that department that have not been held accountable. 

Attorney General Holder. Well, with all due respect — and I 
mean this with great respect — the notion that this was an oper- 
ation set up to do something to impinge upon the Second Amend- 
ment rights of my fellow citizens is absurd. The operation that was 
put together here was an attempt to stop the flow of guns from the 
United States into Mexico, something I think we should all agree 
upon. 

Mr. Walberg. And it wasn’t effective, was it? 

Attorney General Holder. It was not effective. In fact it was 
flawed, fundamentally flawed. 

Mr. Walberg. Very flawed. 

Attorney General Holder. I have said that from day one. But 
the notion that somehow or another this was a setup to come up 
with measures that would impinge upon Second Amendment rights 
is simply not substantiated by the facts. And I think in some 
ways — again, with all due respect, I think that’s almost irrespon- 
sible. 

Mr. Walberg. Well with all due respect, I would concur that 
your mention today of the necessity for impinging upon Second 
Amendment liberties of law-abiding citizens still further brought 
that question up. Let me move on here. An article yesterday by 
former CIA director Michael Hayden noted that you “launched a 
reckoning of CIA renditions detentions and interrogations of terror- 
ists by directing the Justice Department to reopen investigations 
closed years before by career prosecutors.” This decision was op- 
posed by Leon Panetta and his seven predecessors. The article 
notes that you reportedly made the decision without reading de- 
tailed memos prepared by those career prosecutors, declining to 
pursue further proceedings. 



151 


And further, Mr. Attorney General, you are well known in this 
town for not reading memos. You admitted you failed to read 
memos addressed to you in Fast and Furious; you failed to read 
memos before the Mark Rich pardon. You failed to read memos or 
even the law related to the Arizona immigration law. What does 
that say about your leadership and management that you consist- 
ently fail to read extremely important papers placed on your desk? 

Chairman ISSA. The gentleman will suspend. 

As I previously said — although you can certainly talk about your 
management style — this hearing is limited to Fast and Furious, so 
I would ask that you limit your answers to the management style 
as it may relate to Fast and Furious and not to any other cases 
unrelated to our investigation. 

Mr. Walberg. Thank you, Mr. Chairman. 

Attorney General Holder. Well, I disagree with that. Given the 
decision to almost engage in character assassination, I will respond 
to at least some of that. 

I’m the Attorney General of the United States, okay? And when 
it comes to deciding what I’m going to investigate, how I’m going 
to investigate, I take into account a wide variety of things. The de- 
cision I made to open up those CIA matters — and I was an aware 
that this was something that was opposed by a great many people. 
I read a great deal before I made that determination. I had access 
to material that other people who criticized that decision have 
never had access to. 

Now I have great respect for the people, the men and women of 
the CIA who put their lives on the line and who protect this Nation 
in a way that many of you don’t, because I see a briefing every day 
at 8:30 about the great work that they do. But there were things 
done, things that were done during the course of those interroga- 
tions that were antithetical to American values, that resulted in 
the deaths of certain people and that justified my decision to order 
an investigation. That investigation has run its course. We are at 
a point where we are about to close those investigations. It would 
have been irresponsible for me, given the new information that I 
had a chance to review, not to order that investigation. 

With regard to your more general point about me reading or not 
reading memos, I read those things that are brought to my atten- 
tion or things that I think I need to read in order to make appro- 
priate decisions. I’m confident that the management style that I 
have, the involvement that I have is adequate to allow me to make 
appropriate decisions based on facts, based on interpretations of 
the law. And I have a good staff that brings to my attention those 
things that I need to read. 

Chairman IssA. The gentleman’s time has expired. Before I go to 
Mr. Tierney, I would like to make — and we are sort of speaking to 
your staff to a certain extent — the staff aware of the CRS report 
that on numerous occasions. Congress has interviewed line attor- 
neys, including in the Rocky Flats investigation, the early 1990’s 
under obviously a Republican administration. So I would ask that 
your staff review that so that you may correct your statement, that 
it never happens. 

With that, we go to the gentleman from Massachusetts next, Mr. 
Tierney. 



152 


Mr. Tierney. Thank you, Mr. Chairman. Mr. Attorney General, 
indulge me, if you will, on this for a second. This committee’s obli- 
gation is to the family of the deceased, to the other law enforce- 
ment officers involved, to the citizens of this country. And this com- 
mittee is charged with first finding out what happened; and then 
once we determine that, making sure we can work on practices so 
that it never happens again in a flawed situation like this. Mem- 
bers of both parties — and our staff did a great deal of work in de- 
termining the facts, and I think the ranlang member has already 
gone on a great deal about the number of interviews that staffs of 
both parties and the number of documents that they reviewed went 
on, and also laid out a number of actions that were recommended 
for the future. And I know that you have taken some actions and 
the new ATF director has set out some actions as well. 

So at this stage, it seems to me we have a couple of alternatives. 
We could further explore on how the program of gun walking began 
back in 2006; it repeated itself in 2007; it repeated itself again in 
2008 and 2009; and it repeated itself again in Fast and Furious. 
But to do that, we would need to talk to Mr. Mukasey, I should 
think, and the majority is not willing to bring Mr. Mukasey for- 
ward. 

As far as I know, he is the only Attorney General that had docu- 
ments in front of him that even mentioned the programs, or some 
of those programs, although that doesn’t indicate that he author- 
ized it or even condoned it. But certainly if that alternative of try- 
ing to find out more facts about what happened, he would be some- 
body I think would be worth talking to, and we have not been 
given that opportunity. We could explore reforms, necessarily be- 
yond those that you’ve implemented and the ATF director’s imple- 
mented and what statutory changes about gun trafficking and 
things might be involved. But the committee doesn’t seem — at least 
the majority doesn’t seem interested in doing that. Or unfortu- 
nately, as we seem intent on doing here at this hearing put by the 
majority we could continue to chase what seems to be a political 
agenda of trying to find out that somebody in the administration — 
you, in particular, somehow had knowledge or authorized or con- 
doned this operation. 

If that were the case it would seem to me that a good witness 
for us to talk to would be Mr. Melson, who was the then-acting 
ATF director. Mr. Cummings has asked the chairman to bring Ken- 
neth Melson as a witness. Mr. Melson indicated he is willing to 
come as a witness. In fact, he even testified or talked, was inter- 
viewed in a closed interview with staff from both parties. They 
asked him if he had ever approved gun walking. He said he had 
not. They asked if he had ever been briefed about gun walking. He 
said no. They asked if he was aware if the senior Justice Depart- 
ment officials had ever authorized gun walking. He said no. 

Surely if the details of Operation Fast and Furious were ap- 
proved at the highest levels of the Department of Justice, as has 
been accused, then Mr. Melson, the director of the ATF presumably 
would have known about it. This is however, what he said in that 
interview, “I don’t believe I had knowledge of the specific tactics 
used in Fast and Furious until the facts began to be disclosed in 
the media.” 



153 


So Mr. Melson told the committee he never authorized gun walk- 
ing, the Justice Department never authorized it. He wasn’t aware 
of it in the Fast and Furious operation, and he never briefed the 
Attorney General or anyone else at the Department of Justice 
about it. I think that’s pretty valuable information if the focus of 
this inquiry is going to be who knew what when and where. 

This interview with Mr. Melson took place 7 months ago. Chair- 
man Issa has refused to let him answer those questions in public 
before our Members. We can draw some conclusions of our own as 
to why that case’s testimony directly contradicts the assertions that 
the operation was approved at the highest levels of the Justice De- 
partment. 

So that leaves us with only, I guess, to find out whether or not 
there were any bad actions by people at higher levels of asking you 
yet again, Mr. Attorney General, did Mr. Melson, the director of 
ATF, ever raise any issues to your attention about gun walking or 
the conduct of Operation Fast and Furious? 

Attorney General Holder. No he didn’t. 

Mr. Tierney. Do you rely on your component heads to bring sig- 
nificant issues within their agencies to your attention? 

Attorney General Holder. Sure. That’s one of the responsibil- 
ities that they have. And I hope I have the kind of relationship 
with them so that they feel free to bring to my attention issues like 
that. 

Mr. Tierney. Are you disappointed that neither Mr. Melson nor 
anyone else at ATF raised concerns about Fast and Furious to your 
attention or to anyone else at the Department’s headquarters? 

Attorney General Holder. Yeah. I am disappointed not only in 
Mr. Melson, but other people within the Department who were 
seized with this knowledge and who did not bring it to my atten- 
tion and who have admitted they made mistake in not bringing it 
to my attention or to the Deputy Attorney General’s attention the 
fact that gun walking existed in at least some of these operations. 

Mr. Tierney. And have you or has anybody held Mr. Melson ac- 
countable for not bringing these issues to your attention? 

Attorney General Holder. Well, Mr. Melson made the deter- 
mination and we agreed that it would be better for him to leave 
ATF to allow ATF to get a fresh start and to allow him to get a 
fresh start as well. 

Mr. Tierney. Mr. Chairman, at this time, I ask unanimous con- 
sent to enter into the record the transcript of the interview by Re- 
publican and Democratic staff. 

Chairman IsSA. I object. You know that’s grossly inappropriate. 

Mr. Tierney. Well, I think, Mr. Chairman, it’s grossly inappro- 
priate to have a pertinent witness who is not allowed to come be- 
fore this committee and testify. And I thought, since you don’t seem 
willing to do that, then maybe we’d go to the next best thing where 
both parties had an opportunity to interview Mr. Melson and talk 
about issues that seemed to be right at the core of what you are 
alleging over and over again. 

Chairman IssA. The gentleman’s unanimous consent is not — 
okay, I will be even kinder. I reserve. 

Now speaking on my reservation, does the gentleman really be- 
lieve that that is the right thing to do, to make public an ongoing 



154 


investigation that includes a number of officials, includes a situa- 
tion in which an official has taken the Fifth and left the Justice 
Department to make any of those documents publicly available at 
this time when, in fact, it is pursuant to our investigation? Does 
the gentleman actually believe that? 

Mr. Tierney. Mr. Chairman, I withdraw my request at this point 
in time. But I hope we’ve made the point here that what is impor- 
tant is for you to change your mind hopefully and allow Mr. Melson 
to come here and testify in public and answer the questions which 
have been the core of the matter there and the allegations that you 
continuously make apparently erroneously but refuse to acknowl- 
edge. 

Chairman IssA. I appreciate the gentleman’s comments. I would 
note for the record I have not called for the Attorney General’s res- 
ignation. I have not said the Attorney General knew. I certainly 
have — and I think many of us are making the point that people 
didn’t know that should have known things that, in fact, we are 
trying to find out where the failures were made other than the 
local level, which we have begun describing in the case of the act- 
ing — and it’s in his testimony, obviously, which will not in its en- 
tirety made available today. But the acting director, in fact, is cul- 
pable for not knowing more of what a director should know or en- 
sure that people know that make stoppage. 

So I join with the gentleman in saying that, in fact, it does con- 
cern me that someone who is supposed to direct over 1,800 individ- 
uals did not know that this, in fact, involved gun walking. But re- 
member, on February 4 — well after many of these events — the At- 
torney General’s office prepared a document, gave it to us which 
said we never let guns walk. That is of concern too. And the com- 
mittee is not shy about having additional hearings. The Attorney 
General made himself available at this date pursuant to a request. 
We did not and are not saying this is the culmination or we are 
taking him in lieu of less significant 

Mr. Tierney. Mr. Melson’s interview was some 7 months ago. 
And a direct quote from you, Mr. Chairman, on a television show, 
the Roger Hedgecock Show — there was a radio back there — you 
said, “ATF people and Justice people are telling us, this goes all 
the way to the very top. It goes all the way to the ATF Office of 
the Director and obviously goes to the Office of the Attorney Gen- 
eral. This is the approved plan that you know is basically at the 
highest levels of the Obama appointees.” 

If those are allegations that you are going to make, then it would 
be important to have Mr. Melson come in here and testify as part 
of that instead of blocking his testimony and continuing to make 
those assertions which now apparently are obviously not correct. 

Chairman IssA. I appreciate the gentleman giving Roger 
Hedgecock a plug. The fact is that those allegations were made 
with a number of other false allegations. I might note for the 
record that we were given statements, allegations that the ATF di- 
rector was viewing on closed circuit Internet connection the actual 
purchases being made. After receiving testimony and multiple 
checks, we discovered that although he inquired about the capa- 
bility of viewing these surveillance as they occurred, that no such 
event occurred. This often happens in investigations. 



155 


Mr. Tierney. Well Mr. Chairman I am glad that you recognized 
that those comments that you were amplifying at the very least are 
false and now mayhe we can move on to the business of deter- 
mining what we can do as a government 

Mr. Cummings. Mr. Chairman, just to follow up on what you just 
said. I know you are reserving, Mr. Chairman. 

Chairman ISSA. Actually the gentleman withdrew. 

Mr. Tierney. I withdrew. 

Mr. Cummings. I was just wondering if there was a way that we 
could have a portion of that document that goes to Mr. Melson’s 
testimony where he clearly states that he never told the Attorney 
General about these tactics in Fast and Furious where he says that 
he did not — he, himself, did not know. I mean, the staff worked 
together 

Chairman IssA. The gentleman from Massachusetts has done a 
very good job of making that available, and I certainly 

Mr. Cummings. I just want to make sure that the record is com- 
plete. The Attorney General has been accused of — some very un- 
kind things have been said about him. His reputation hangs in the 
balance, and I think that we’ve got Mr. Melson, the former ATF di- 
rector, who clearly stated that he never said anything about these 
tactics to the Attorney General. And he even said that he didn’t 
even know about them himself. I was just wondering if we could 
just have that portion of the transcript as a part of the record. I’m 
not trying to 

Chairman IsSA. I will work with the ranking member to find ap- 
propriate portions that seek your concerns that can be made avail- 
able. I might note that my side has quoted repeatedly — and this is 
why I want to make sure we are fair on both such quotes. My side 
has quoted where he said he was sick to his stomach when he read 
the wiretaps and discovered what he didn’t know. So although I 
think it is inappropriate to release the entire transcript, I will work 
with the gentleman. We will hold the record open to make appro- 
priate statements that you believe are necessary to make the 
record complete. And I will be glad to do that. 

Mr. Cummings. Just 30 seconds. What you just said is one of the 
reasons why I want to make sure it’s a part of the record. When 
Mr. Melson said as he sat at his kitchen table — and I read it 50 
million times. And he said his stomach got in knots when he found 
out about it, basically his point was that he didn’t know about it 
before then. 

So if he didn’t know about it, it was impossible for him to tell 
the Attorney General about it. And that’s all. 

Attorney General Holder. If I could 

Chairman IsSA. Well, I’m not going to allow — and I apologize Mr. 
Attorney General. I’m not going to allow this to turn into a se- 
quence of those because I think both sides could get into various 
testimonies. I will work with the gentleman. He has a valid point. 
We will now return to regular order. 

Mr. Cummings. Thank you, Mr. Chairman. 

Chairman IsSA. You’re very welcome. 

Attorney General Holder. Could I just say one thing? 

Chairman IsSA. The gentleman is recognized. 



156 


Attorney General Holder. When Mr. Melson indicated that he 
became sick to his stomach, he did not — it was not when he was 
reading the wiretap applications. He was reading reports of inves- 
tigations. And I think that’s an important distinction. 

Chairman IssA. I appreciate that. 

We now go to the gentlelady who has been waiting patiently from 
New York, Ms. Buerkle for 5 minutes. 

Ms. Buerkle. Thank you, Mr. Chairman. And thank you Mr. 
Holder for being here this morning. I just want to make a couple 
of comments to start out because we’ve heard it from the other side 
of the aisle and even yourself with regards to this being a Demo- 
cratic or a Republican issue, whether this is a, you know, political 
game, if this is an election year charade. 

I think it’s very important to recognize that you, as the Attorney 
General, with all due respect, need to be held accountable, or some- 
one does, as to what happened. 

Now I’m amazed that of all the issues that face this country, this 
is the issue that I hear from my district so frequently about. And, 
in fact, today — and I will enter them into the record — I have no 
fewer than 30 questions from folks in my district who want to 
know what happened, why it happened, and who is going to be 
held accountable to us. And I was taken aback just a little Mt with 
your response to my colleague, Mr. Walberg, when you sort of de- 
clared that I am the Attorney General. 

Well, with all due respect, sir, yes, you are, but you are also ac- 
countable to not only the folks in my district, but the American 
people. And I just want to — if you would indulge me — just play a 
recording because most importantly — and as you are well aware of, 
we had a hearing here in June with Brian Terry’s family. And in 
that hearing, I specifically asked his mother — and we’ll play that 
hearing, if you would, please. 

[Video shown.] 

Ms. Buerkle. So Mr. Attorney General, on behalf of Mr. Heyer, 
who is Brian Terry’s cousin and actually the spokesperson for his 
mother and his sister, I would ask you, to what lengths has your 
investigation into Operation Fast and Furious gone? And will ev- 
eryone in that operation that had to deal with those specific weap- 
ons be brought up on charges facilitating the murder of Brian 
Terry? 

Attorney General Holder. Well, we are certainly working now 
to — I mean this is an ongoing investigation. It’s actually a very sen- 
sitive time. I’m not sure I can talk an awful lot about where the 
investigation is. I have indicated that I think we are pretty close 
to making some announcements. And we will hold accountable, 
seek to hold accountable those people who are responsible for 
Agent Terry’s death. With regard to people who were involved in 
Operation Fast and Furious, we are endeavoring to find out who 
made the determinations to allow guns to walk. I’m not really at 
liberty to talk about the weapons that we used in the actual inci- 
dent. That goes to ballistics reports, and I don’t think I can com- 
ment on that here. That will obviously come out during the course 
of the trial. But we will hold accountable people who were involved 
in — as I have described, this flawed investigation. 



157 


And one other thing. I did not mean to imply the comments that 
I made there that I should not be held accountable. But I also 
think that there’s a certain fairness component to this as well. And 
I ought to be held accountable for those things that are within my 
area of responsibility. I should be held accountable for things that 
are factually correct as opposed to those things that are politically 
desired. And I’m more than willing to admit mistakes when I have 
made them. But I also think that if we are going to really get 
ahead here, if we are really going to make some progress, we need 
to put aside the political gotcha games in an election year and 
focus on matters that are extremely serious. When one looks at the 
death toll in Mexico, when we look at the guns 

Ms. Buerkle. Excuse me, sir. My time is ticking away. I just 
have one more question. Unlike the chairman, I was one of the 
Members of Congress who called for your resignation. I feel that 
the Department of Justice — that you are responsible for all of the 
activities that fall under your umbrella. And I think that you have 
denied knowledge of the program and that accordingly, you should 
not be held accountable. 

My question to you today is, what more could have possibly gone 
wrong that you would have been held accountable? And before you 
answer that, I would suggest that the President has been eerily 
quiet about coming to your defense. So let me ask it this way: How 
many more Border Patrol agents would have had to die as a part 
of Operation Fast and Furious for you to take responsibility? 

Chairman IssA. The gentlady’s time has expired. The gentleman 
may answer, or not. 

Attorney General Holder. You know, that’s the kind of thing, 
you know, you wonder why you are getting those calls. I mean, peo- 
ple will focus on a question as much as an answer. And as a Mem- 
ber of Congress, I mean, really — is that the way in which you want 
to be seen, you want to be known? 

You know, I should be held accountable for — certainly my role in 
whatever I did or didn’t do in connection with the supervision of 
Fast and Furious. But, yeah. I’m Attorney General of the United 
States, and I should also be held accountable and perhaps even 
given some credit — imagine that — given some credit for the things 
that this Justice Department has done under my leadership, 
whether it deals with national security, revitalize antitrust, revi- 
talize civil rights enforcement efforts. And so one has to balance all 
of these things. 

I’m not claiming to be a perfect person or a perfect attorney gen- 
eral. I get up every day and try to do the best job that I can. I have 
great faith in the people who work in the Department. And you 
know, that kind of question I think is, frankly — and again, with re- 
spect — I think that’s beneath a Member of Congress. 

Chairman IsSA. The gentleman has concluded I think. We now 
go to the other gentleman from Massachusetts, Mr. Lynch, for 5 
minutes. 

Mr. Lynch. Thank you, Mr. Chairman. And I want to thank the 
Attorney General for helping the committee with its work. I know 
this is your sixth time. 

If I could, I would like to try to put the political part of this aside 
and really out of respect for Agent Brian Terry and his family and 



158 


the other 117,000 people who work for you, try to look at some re- 
forms that actually might go to the core of what went wrong here. 

Now I know you have referred repeatedly to a tactic, the tactic 
of gun walking. But really, when you drill down on that, what we 
are allowing here — in this case, in Fast and Furious at least, and 
in the earlier cases under the Bush administration, basically what 
the Department of Justice did was authorize criminal activity to 
allow folks that they knew — they knew these 20 dealers were buy- 
ing hundreds of guns — heavy arms, shipping them into Mexico. 

In my city, in Boston, through the Office of the FBI, through the 
confidential informant program, we had folks that were allowed to 
commit 19 murders under the care and protection of the FBI. I’ve 
got a situation right now that’s in court where another individual, 
a confidential informant, has killed at least — alleged to have killed 
at least a half dozen people. The problem here is that this tactic 
actually authorized — it puts the law enforcement. Federal law en- 
forcement in a position of authorizing criminal activity. They be- 
come complicit in it. That’s very troubling, especially when it re- 
sults in the death of a very brave, courageous agent or to innocent 
American civilian citizens. 

And what is especially troubling is that I believe that you didn’t 
know about it. I believe that you didn’t know about it. But that’s 
not a comfort to me. It is unbelievable that either the Phoenix field 
office or the Boston office of the FBI can authorize criminal activ- 
ity, not just a mere tactic, but a whole strategy of using that out- 
side the law, and then having innocent civilians killed. 

So I actually think one of the solutions might be for Congress to 
pass a law that says, if there are those limited occasions where we 
are going to authorize criminal activity to go on in our society 
under the cover of law enforcement’s authority, then either your- 
self, as the Attorney General, or the director of the FBI or the head 
of the ATF has to sign off on it because here, everyone escaped re- 
sponsibility because of plausible deniability. They can say, I didn’t 
know about it. 

Well, that’s troubling. That scares the hell out of me when I 
think that there’s just a local office of the ATF or the FBI that is 
authorizing criminals to engage in this typed of activity, taking 
AK-47s and letting them get smuggled into Mexico, or, you know, 
southern California on our side of the border. 

What are you prepared to do? Look, I know that’s a blunt instru- 
ment, saying that you have to sign off on any of these clandestine 
operations where we are allowing people to engage in criminal ac- 
tivity that puts the public at risk. What do you propose to do to 
make sure we don’t have this “I didn’t know about it” approach or 
the “I know nothing” Sergeant Schultz defense for law enforce- 
ment’s “I didn’t know about it?” What do you propose, sir? 

Attorney General Holder. I think that’s a legitimate question. 
I think we don’t want to go too far in this sense in that law en- 
forcement will engage in illegal activity in an attempt to solve 
crimes. We engage in illegal activity when we are — when we buy 
drugs from people who are selling drugs. We engage in illegal ac- 
tivity when we pay corrupt public officials money, when we go into 
undercover operations. But we have to have that ability. It is an 
extremely important law enforcement technique. But I think the 



159 


point that you raise is a good one, and that is, that the approval 
to do these kinds of activities can’t rest at the line level. There has 
to he supervisory responsibility. And the question is, where do you 
draw that line? 

It is not realistic for the Attorney General to sign off on every 
one of those things. We have mechanisms within the Department 
when it comes to undercover operations that rise to a certain level 
where an undercover review committee actually has to approve 
them. There’s a committee that does that. The reforms that have 
been put in place by Todd Jones at the ATF requires greater super- 
visory responsibility for approving those things. 

But even with all those approvals — as I said before, you know, 
letting drugs walk, letting money walk, that’s one thing. But let- 
ting guns walk, I simply don’t see — I just don’t see how that’s an 
appropriate law enforcement technique. If you balance the poten- 
tial gain against the potential harm, the harm is too great to jus- 
tify the use of gun walking. 

Chairman ISSA. I would ask unanimous consent that the gen- 
tleman have an additional 30 seconds. 

Mr. Lynch. I thank the gentleman. Where do we draw that line 
though? There has to be some accountability here. There has to be. 
And again, I go back to the very nature of this tactic. It is putting 
law enforcement — and the confidential informant arrangements are 
especially troubling. These folks operated for years. We are taking 
taxpayer money to pay confidential informants at a very generous 
lifestyle, and it seems to be all clandestine. At least in the Boston 
office, the higher-ups didn’t know anything about it. 

Chairman IsSA. Would the gentleman yield? 

Mr. Lynch. Sure. 

Chairman IssA. I agree with the gentleman that we need to do 
more oversight over the FBI and other entities that have this au- 
thority. I also agree with the gentleman that there has to be a con- 
gressionally stated level that we are comfortable with that can ap- 
prove this, particularly in light of Fast and Furious, recognizing 
that cartel members are unindicted and in fact, were part of this 
operation that led to Brian Terry’s death. So I join with the gen- 
tleman in support of Congress doing oversight and taking that role. 

Mr. Lynch. I thank the gentleman, and I yield back the balance 
of my time. Thank you, sir. 

Chairman IsSA. I thank the gentleman for yielding back. 

We now go to the gentleman from Arizona, Mr. Gosar. 

Mr. Gosar. Thank you. Attorney General, for coming today. 
There is no secret about how I feel, absolutely no secret. And I am 
appalled, absolutely appalled. And I am appalled even further 
about the discussion today, because if this same thing had occurred 
on the east coast, how much more of a ruckus we would have 
heard. How much more we would have actually taken into consid- 
eration. 

I am the only member on this committee that is from Arizona. 
Yes, we lost a border agent. But we are further impugned because 
these guns are going to show up at crime scenes, particularly in Ar- 
izona, from here to whenever, as well as the Mexican government, 
and the Mexican people who have lost over 300 people. 



160 


And I think that I am very taken aback by when you said, you 
know, we shouldn’t be doing this. We shouldn’t be gun walking. 
And everybody knows that that is inappropriate. Well, I tell you 
what. That shows me exactly why I am so appalled, because if 
there was a doctrine out there that said listen, if you walk guns, 
you are going to do time, that is the penalty that should be placed 
here, because that is what we are going to have to endure. And I 
am finding it very upsetting that Arizona is taking this on the face 
and we trivialize what is going on here. 

I think we should be able to share all information to find exactly 
who exactly authorized this. We talked about in-line, people that 
have been moved from Arizona up the line to DOJ, having that dis- 
cussion to find out how this came about, because this is in our 
backyard. Don’t you agree? 

Attorney General Holder. Agree — you have said a lot. 

Mr. Gosar. Don’t you agree that we shouldn’t trivialize this. 

Attorney General Holder. No, and it has not been trivialized. 
This is obviously — at least not by me. 

Mr. Gosar. Do you think it is appropriate that we just say don’t 
do it. You shouldn’t be doing gun walking. Or do you say it 
shouldn’t be done, and if it is done and you are found culpable and 
you are a participant in this, that you should be held to the same 
standards as the rest of us are? 

Attorney General Holder. What I did after I found out about 
gun walking was to issue a directive that said this is unacceptable, 
don’t do it, and you will be held accountable if, in fact, you do do 
it. 

Mr. Gosar. So you will agree with me that if they do this, and 
they are put before a jury of their peers, that they would do crimi- 
nal time? 

Attorney General Holder. Well, I don’t know about criminal 
time. I mean, one has to look at the facts of a particular case, and 
if somebody did something with criminal intent, sure, that would 
be appropriate. But if somebody did something with criminal in- 
tent. I mean, you have to get past, you know, beyond a reasonable 
doubt. There is a whole variety of things 

Mr. Gosar. You just can’t slap somebody’s hand on this and just 
say don’t do it again. What I am seeing here is it is something in- 
appropriate, and that is in Main Street America, we don’t get these 
same kind of privileges to make mistakes. And we are dealing with 
people’s lives. 

Attorney General Holder. Well, you know, we actually do have 
a situation in which people who engage in straw purchasing and 
in some forms of gun trafficking actually do get slaps on the wrist 
and that is why we need a stronger gun trafficking law and we 
need greater penalties when it comes to straw purchasing. Because 
we have as I think Agent Forcelli described people who essentially 
are being charged as if they were speeding. That is unacceptable. 

Mr. Gosar. So straw purchasing, so let me ask you with the 
FFLs, the Federal firearms licensees, no new regulations on them? 
They did everything that they were told to do and then some. They 
kept even pounding people saying, this is ungodly. This same guy 
is coming in here and we got ATF saying sell guns. Sell the guns. 
Something is wrong here. So putting additional restrictions on 



161 


FFLs is not the protocol. It is further disseminating what is going 
on and than having a higher cognizance, won’t you say? 

Attorney General Holder. I am not sure what additional restric- 
tions you are talking about when it comes to FFLs. 

Mr. Gosar. Obviously right now, down in Arizona we have fur- 
ther paperwork to fill out if you are selling long guns. How did that 
come about? 

Attorney General Holder. Well, four States, the border States 
have been asked if you sell long guns, like AK-47s, more than two 
^ns in a 5-day period, that ought to be reported to ATF, which 
is what is consistent with what they have to do now when it comes 
to the sale of handguns. That is all we have asked. And that is a 
nationwide thing that has been in effect, the handgun restriction, 
since the 1980’s, I think probably since the Reagan administration. 

All we have said is the four States, the four States along with 
the border where the greatest amount of trafficking occurs into 
Mexico, that you have this additional requirement, and a Federal 
judge here in Washington has said that that is appropriate. 

Mr. Gosar. I find it interesting that back here on the east coast 
dictating west coast. But you know, a hypothetical. So what do you 
think the penalty should be for a cabinet member, a sworn officer 
of the law, who comes to testify before Congress and knowingly 
lies? 

Attorney General Holder. Well, hypothetically, there is a per- 
jury statute. There is a false statement statute. I don’t know what 
the penalty is. It is 10 years. I am not sure. Whatever. We have 
something in Title 18 that already answers that question. 

Mr. Gosar. Well, I am one of those people that I find it disdain- 
ful about how we have conducted business over this. If it were any 
other State than Arizona, I think we would have seen different re- 
sults and different penalties and different critical people and man- 
power put toward this to find this and being much more coopera- 
tive, and I am very disturbed by that. 

Attorney General Holder. We have talked an awful lot about 
during the Republican primary 

Chairman IssA. The gentleman’s time has expired. Is there a 
pending question you are answering, Mr. Attorney General? 

Attorney General Holder. I think I was. 

Chairman IssA. Okay, feel free to answer the question. 

Attorney General Holder. I was just saying that, you know, the 
notion that we are somehow looking at this in a regional way and 
that a particular region of the country is not getting the attention 
that it deserves or it is not being taken as seriously as it might if 
something happened back on the east coast, your reference to a 
judge here in Washington, this is an American problem. This is an 
American problem. And what I have tried to say is that, you know, 
we too often think about these things as border problems, when the 
reality is what happens in Arizona, what happens in New Mexico, 
California, Texas, will have a direct impact in Chicago, New York, 
other parts of California, Washington State, here in Washington, 
DC. 

Chairman IsSA. I thank the Attorney General. I don’t think there 
really is a pending question that that is responsive too. But I ap- 
preciate your comment. 



162 


We now go to the gentleman from Virginia for 5 minutes, Mr. 
Connolly. 

Mr. Connolly. Thank you, Mr. Chairman, and welcome, Mr. At- 
torney General, and thank you for being here and showing such 
dignity and honor in the face of some attempts to suggest you are 
other than a dignified and honorable Attorney General serving his 
country well. And I just think for the record, welcome on Ground- 
hog Day. We heard that Punxsutawney Phil saw his shadow, so we 
have 6 more weeks, and it is fitting you are here for the sixth time 
before Confess with repeated attempts to try to pin something on 
you and this President that cannot be pinned, and it is my firm 
hope that at some point the majority would actually acquiesce to 
the request to have your predecessor Mukasey come here and talk 
about Wide Receiver and his knowledge of that program and gun 
running. 

Mr. Holder, I assume there is a law that specifically forbids the 
trafficking of firearms, particularly if that trafficking ends up arm- 
ing drug cartels, or if the weapons are subsequently found at crime 
scenes. Is that not the case? 

Attorney General Holder. We don’t have a Federal trafficking 
statute, and that is one of the things that we are working for. 

Mr. Connolly. I am sorry. Forgive me for interrupting. We don’t 
have such a law? 

Attorney General Holder. No. And that is one of the things that 
we have been trying to get Congress to consider and to pass. 

Mr. Connolly. Well, now, you have appeared before Congress 
many times, six on this subject. Has any of the congressional com- 
mittees summoning you to testify had a hearing on that law, the 
need for such a law? 

Attorney General Holder. No. 

Mr. Connolly. Despite our concern about deaths and violence 
and an operation gone bad, we haven’t had a hearing on trying to 
forbid the trafficking of firearms and making it a Federal penalty? 

Chairman ISSA. Would the gentleman yield? 

Mr. Connolly. I would prefer not to, Mr. Chairman. 

Please, Mr. Holder, answer the question. 

Attorney General Holder. No, we have not had that hearing. I 
have tried to raise it as part of one of the reasons — part the things 
that I think we ought to be considering as a means to deal with 
this issue, to deal with this problem. There is clearly a need for a 
Federal trafficking, a firearms trafficking statute. 

Mr. Connolly. Isn’t that interesting that in the majority in this 
Congress we haven’t had a hearing on that subject. Well, if there 
isn’t a strong penalty for firearms trafficking, surely there is some 
kind of harsh penalty for straw purchasers of guns? 

Attorney General Holder. I would like to be able to say the an- 
swer to that question is yes, but, unfortunately, the answer to that 
question is also no. As I indicated before, I go back to him only be- 
cause he has great — more experience than I do. Agent Forcelli who 
testified previously before this committee, likened the Federal 
straw purchasing penalties to a speeding ticket. 

Mr. Connolly. At this very committee? 

Attorney General Holder. Right. Yes. At this committee, and 
that I think is obviously unacceptable. 



163 


Mr. Connolly. And the testimony of that agent called by this 
committee, by the majority in this committee, was actually inter- 
rupted and chastised for the nature of his answer because it actu- 
ally dared to talk about the need for stricter gun enforcement and 
tougher penalties. Is that your recollection, Mr. Attorney General? 

Attorney General Holder. I believe Ms. Maloney was asking a 
question in that regard, and I don’t know what the technical term 
was, but it was ruled out of order or something. 

Mr. Connolly. When I was in Mexico on a bipartisan leadership 
trip to talk about this and some other difficult topics with the At- 
torney General of Mexico at the time, we asked the Attorney Gen- 
eral, if there was one thing the United States could do to help you 
in your battle against drug cartels in the north of your country, vio- 
lence that has gotten unbelievably, unspeakably out of control, 
what would it be? And his answer was, reinstate the assault weap- 
ons ban as American law. Your view on that? 

Attorney General Holder. This administration has consistently 
favored the reinstitution of the assault weapons ban. It is some- 
thing that we think was useful in the past with regard to the re- 
duction that we have seen in crime, and certainly would have a 
positive impact on our relationship and the crime situation in Mex- 
ico. 

Mr. Connolly. Well, surely we have had a hearing on that 
though. I mean, you have been up here six times. This is all about 
trying to protect that border with Mexico and to try to help Mexico 
as well as protect U.S. security of U.S. citizens. Surely, we have at 
least had a hearing on that subject, have we not? 

Attorney General Holder. Not to my knowledge. Not a hearing 
that I participated in. 

Mr. Conyers. Really? It makes one wonder what this hearing is 
actually all about. I yield back. 

Chairman ISSA. Would the gentleman yield? 

Mr. Connolly. I certainly would, Mr. Chairman. 

Chairman IssA. By the way, we are happen to entertain all sug- 
gestions for hearings. I will note that you keep saying six 

Mr. Connolly. Reclaiming my time just for a second there, Mr. 
Chairman. I am delighted to hear that you are happy to entertain 
such requests. I would then formally request that the former Attor- 
ney General, Mr. Mukasey, be invited to the committee to testify 
about what he knew and when he knew it about the program anal- 
ogous to Fast and Furious in the Bush administration. 

Chairman IsSA. We will attempt to glean that information. I 
don’t know if it will be by personally having somebody come, but 
we do intend to glean information from prior administrations as to 
the level of coverage, and I will work with the gentleman on that. 
I might, though, note that of the six times the Attorney General 
has appeared, for example, to the Appropriations Committee, he 
may have been asked a question related to Fast and Furious, but 
that wasn’t the purpose for which he came. 

And I would only note that as far as I can tell, the Department 
of Justice has not submitted a request for a Federal firearms law 
to Congress. So I know that the gentleman is very concerned about 
these laws. Asking Congress to sua sponte come up with ideas for 
laws is actually seldom the way the administration would like it. 



164 


And I might mention to the gentleman that if the Attorney General 
and Justice came up with a proposed firearms law, that might be 
a good start to answering your concerns. 

I yield back. 

Mr. Connolly. Mr. Chairman, if you would just indulge, because 
I would like to follow up on that, that is a very good point. 

Chairman ISSA. I ask unanimous consent the gentleman have an 
additional 30 seconds. 

Mr. Connolly. I would just take our joint question then if you 
would, Mr. Chairman, and ask the Attorney General to comment. 
Why hasn’t the administration, in fact, made the request the chair- 
man just referred to with respect to toughening gun laws? 

Attorney General Holder. Well, we have certainly requested it 
in the past. I will be more than glad to submit something for con- 
sideration. We would love to work with this committee, the Judici- 
ary Committees in both Houses in that regard. I believe that Mrs. 
Maloney actually has a bill that I think would be a good starting 
point for us. There is something that exists there that would be the 
basis for that conversation. 

Chairman IssA. Does the President support Mrs. Maloney’s bill? 

Attorney General Holder. We would certainly want to work 
with her on that bill. I mean, obviously there are going to be some 
things we want to work on, but I think that is certainly a good 
starting place. 

Mr. Cummings. Would the gentleman yield? I know we are out 
of time. But I just want to make sure that is my bill and Mrs. 
Maloney’s bill. 

Attorney General Holder. I am sorry. 

Chairman IssA. That will probably help the President like it even 
more. 

Mr. Cummings. And we welcome your support. 

Chairman IsSA. All right. I thank all of the gentlemen and lady. 
With that, we go to one of the most experienced members of the 
committee, although a freshman, the gentleman from Pennsyl- 
vania, Mr. Meehan, for 5 minutes. 

Mr. Meehan. Thank you, Mr. Chairman, and thank you, Mr. At- 
torney General. I know I sent you a letter some time ago and I ap- 
preciate your coming to our committee. Look, I am going to try to 
do my best to work as we try to do with the facts that are before 
us, as limited as they are based on the discovery. But what I have 
been able to glean, as everybody agrees, is the tactics of the ATF 
are not to be supported or condoned. 

But if you heard testimony that was given from the U.S. attorney 
in Arizona, Paul Charlton, in 2007, that he disagreed and approved 
of those tactics and declined the request to prosecute the cases of 
Wide Receiver, would you dispute that at all? 

Attorney General Holder. I am not aware of Mr. Meehan’s — Mr. 
Charlton’s testimony. 

Mr. Meehan. It is his testimony that he declined to prosecute 
those cases. And just so you know, the other facts that I have been 
able to glean is that Kevin Carvell, who is a DOJ Criminal Division 
gang unit supervisor in September 2009 called it a semi-dormant 
investigation, gun trafficking investigation by ATF. And in 2012, 



165 


Jason Weinstein called it a case from years earlier, which, in my 
mind, suggested it was not something which was current. 

Attorney General Holder. But Wide Receiver was dormant and 
then was brought hack to life. 

Mr. Meehan. Well, I want to know why. That is a pretty good 
question, because — who is Laura Gwinn? 

Attorney General Holder. I don’t — I am not sure. I don’t know. 

Mr. Meehan. Well, let me tell you who Laura Gwinn is again, 
going back. Apparently Laura Gwinn was an attorney from main 
Justice who was sent by Lanny Breuer to prosecute gun cases, and 
around 2009, September 2009, she was sent to Arizona to prosecute 
gun cases. In her e-mail, September 2, 2009, she sends an e-mail 
to Jim Trusty in the U.S. Department of Justice in Washington and 
it says “it is my understanding a lot of those guns walked.” 

So we had an attorney from your Department sent to Wash- 
ington who sends a communication back to mid-level or senior level 
people in the criminal department saying it is my understanding, 
I am on the scene, guns walked. And I want to know why, when 
a former U.S. attorney based on those opinions, declines to pros- 
ecute cases because he does not like the procedures of the ATF, and 
an attorney who goes and identifies gun walking, why would a sub- 
sequent administration send down attorneys and resurrect these 
cases for prosecution? 

Attorney General Holder. Well, I mean, we want to try to hold 
accountable the people who were responsible for crimes that were 
committed, and I would guess that people took into account the 
techniques that were used in making the determination as to which 
cases would, in fact, be prosecuted. 

Mr. Meehan. Well, I sure do think that that is correct. And who 
do you think the people are who sit there and take into account the 
techniques that were used? Those people in ATF that are looking 
for the determinations from the Department about what tactics are 
appropriate. And what signal does that send when the prior pre- 
vious U.S. attorney declines and says those aren’t appropriate tac- 
tics, but the new one comes down and says no, we believe that we 
are going to prosecute these cases in which those tactics were used. 

But this was simultaneous as well, I know, to an effort in 2009 
when Lanny Breuer actually went down and discussed the idea of 
traveling to Arizona to meet and plan ways to coordinate gun traf- 
ficking. So I just wanted to know why that determination was 
made. 

Let me switch to one other thing, because again, it comes back 
to the idea of who knew what and when. Was Fast and Furious an 
OSADEF case? 

Attorney General Holder. Yes, I think it received an OSADEF 
designation. 

Mr. Meehan. And, you know, I am holding in hand the U.S. at- 
torney manual, and we have all lived with this, and I know you 
know it 

Attorney General Holder. You have, certainly. 

Mr. Meehan. We have spent our time. I look and it says, I am 
talking about the places, authority of the U.S. attorney and what 
needs to be approved by the Department of Justice. Approval is re- 
quired for organized crime strike force cases, of which Fast and Fu- 



166 


rious was. Every significant action in the investigation and pros- 
ecution from case initiation, court-authorized electronic surveil- 
lance, witness immunity, witness protection, and other important 
events must be approved in advance by the organized crime and 
racketeering section, which is in Washington, DC, the last I looked, 
correct? 

Attorney General Holder. That is correct. 

Mr. Meehan. So we have the Department in Washington who is 
actually making determinations about the sufficiency of the new in- 
vestigations that are taking place, the OSADEF investigations that 
are taking place, correct, which became Fast and Furious. 

Attorney General Holder. Well, I am not sure exactly — it is one 
of the things we have to try to, again, figure out, who exactly 

Mr. Meehan. Well, Mr. Holder, I am figuring it out. I am watch- 
ing the documents. I am giving you that route. 

Attorney General Holder. Well, there is clearly — I understand 
the regulation that you have read. Now the question is who actu- 
ally made the necessary approvals, who was involved, why did they 
do something that might have been contrary, as you say, I don’t 
know, to what the previous U.S. attorney did. These are the kinds 
of things that I think we are going to find out from the Inspector 
General. I have not done a top-to-bottom review yet. I haven’t been 
allowed to do that. I can’t do that. 

Mr. Meehan. One of the things we know is there are approvals 
as well for wiretaps, and in the conclusion of approval for a wire- 
tap, we know that we have to put together a document which is 
an affidavit from law enforcement, an affidavit in which to be ap- 
proved, it has to suggest that all other law enforcement options 
with respect to investigative techniques have been exhausted and 
are not — so I don’t have access. I would ask, but I suspect you are 
not going to let former Federal prosecutor and myself, Mr. Gowdy, 
have access to the seven separate affidavits that were included as 
part of the wiretap authorizations that were approved by your De- 
partment. Would we be allowed to have access to them? 

Attorney General Holder. You know, I am not sure what the 
history is in that regard 

Mr. Meehan. They are sealed. I know they are sealed. 

Attorney General Holder. They are sealed. And I don’t know 
whether or not as part of our interaction with Congress histori- 
cally, the Department has sought unsealing orders in that regard. 
I just don’t know. 

Mr. Meehan. I would like to know what was in those wiretap af- 
fidavits with respect to which we know there needs to be the ar- 
ticulation of the investigative steps that were taken. And if I 
am 

Attorney General Holder. I am sorry, go ahead. 

Mr. Meehan. I would like to know if we would have the ability 
to be able to review those, and even in some context in which we 
could negotiate. The only thing we want to see is the extent to 
which there may be references to tactics that were used by ATF 
with respect to gun walking. 

Attorney General Holder. Well, as you and Mr. Gowdy will 
know maybe better than anybody else on the committee, these 



167 


kinds of applications don’t always go into all of the techniques that 
are used in a particular investigation. 

Mr. Meehan. But I don’t know that, and I would like to know 
that. 

Attorney General Holder. I am just saying generally. So that 
there is the possibility that a review of the material submitted by 
the field in Washington would not contain something that would 
say guns were allowed to walk, or however it might be described. 

Mr. Meehan. But there is also the possibility that it would, and 
what I want to know, because I do know that your authorities 
would have from OEO, and it would actually go up higher to Mr. 
Weinstein, if I am correct, who would have to review that affidavit. 
So it would be for a pretty serious high level guy in the criminal 
division that would have in his hands that affidavit if he so choose 
to read it. 

Attorney General Holder. A Deputy Assistant Attorney General 
has to ultimately approve a wiretap before it goes — a wiretap appli- 
cation before it goes before a court, and we have tried to put in 
place some new measures with regard to OEO and how these 
things are handled. But I will, you know, I will look and see what 
we have done historically with regard to these wiretap applications 
and see how we will proceed, given the request that you have 
made. 

Mr. Meehan. Thank you. My time has expired. 

Chairman ISSA. I thank the gentleman. We now go to the gen- 
tleman from Illinois, Mr. Quigley. 

Mr. Quigley. Thank you, Mr. Chairman. 

Mr. Chairman, as someone who has gone through about 200 
trials myself, I know there are a lot of experienced trial attorneys 
in this courtroom. I appreciated the novel. Bonfire of the Vanities. 
The best line I have read 

Chairman IssA. Say that again. Bonfire 

Mr. Quigley. Bonfire of the Vanities. 

Chairman IsSA. I would ask unanimous consent that the gen- 
tleman have 15 more seconds to educate us as to that. 

Mr. Quigley. Well, there is a wonderful scene in which Judge 
White talks to the district attorney about prosecuting defendants 
for opportunistic reasons. He concludes wonderfully by saying, so 
go tell your boss, the district attorney. Captain Ahab Weiss, that 
I know he is out there looking for the great white defendant, who 
Mr. Williams over there is not it. 

Much the same is today. We come to the conclusion after nearly 
six hearings that I note there are those looking for the perfect case 
to embarrass the Attorney General and the President, but after six 
hearings, this is not it. I say so respecting and understanding that 
this is a great tragedy, a great loss that requires change and ac- 
countability. But if it is done in a way with a Hollywood-type per- 
sona, it is opportunistic. 

Erankly, it took the minority staff to write a pretty good detailed 
analysis of what happened and what needs to change. And now, 
Mr. Attorney General, it is incumbent upon all of us to make sure 
that happens, and as you suggested there is accountability. 

But if it is just deflection, we fall into the other movie trap of 
the day, which, Mr. Chairman, you referenced, and that is Ground- 



168 


hog Day. Let’s remember what happened in that movie. The char- 
acter Bill Murray lives the same day over and over again until he 
reaches his own reality and comes to terms with it. 

We do as well. We have to come to terms with the reality that 
in this country we let something that is dastardly take place and 
it wasn’t corrected fast enough. And we need to make changes. And 
while they are started, we still need accountability. But it can’t be 
a deflection. 

Now, Mr. Attorney General, you mentioned some of the issues, 
the lack of a firearms trafficking statute. We talked about the long 
arm reporting requirement to a certain extent. You mentioned tes- 
timony at a previous hearing from agent Peter Forcelli. His exact 
quote, by the way, was “Some people view this as being no more 
consequential than doing 65 in a 55.” That was his testimony about 
punishment for straw purchases. He also said something else that 
is related to this issue and where we go from now on. He said, “I 
have less than 100 agents assigned to the entire State of Arizona. 
That is 114,000 square miles. So do we have enough resources? So 
do we have the resources? No, we don’t. We desperately need 
them.” 

I also would note toward that end that appropriate funds for ad- 
ditional ATF personnel in this fiscal 2012 year. Congress’ appro- 
priations for ATF was $57 million below the agency’s modest re- 
quest, resulting in increased layoffs and early retirement for crit- 
ical personnel. ATF plans to reduce its work force by about 5 per- 
cent to comply with these budget constraints, leaving fewer agents 
to pursue traffickers and inspect the small handful of dealers who 
repeatedly violate these gun laws. 

Mr. Attorney General, if you could briefly comment on the re- 
sources needed to do this job? 

Attorney General Holder. Yes. I think that if we are serious, as 
we all say we are about dealing with this problem of guns going 
to Mexico, we have to have an ATF agency that is staffed well, that 
has the appropriate leadership and that has sufficient resources. 
We have asked for, with regard to these teams that ATF puts on 
the border funding for 14 of them. We only got funding for nine. 
We need more people than we have now in ATF in order for them 
to do the job in the way they want. We need a permanent head of 
ATF. There is something that comes with a Senate-confirmed head 
that is different from somebody who acts in an acting capacity, 
even though Todd Jones, I think, is doing a great job. 

We need all of these things in order for ATF to be as good as it 
can be with regard to the work that it does along the border, and 
the decision by whoever to keep this agency not as strong as it pos- 
sibly might be is something that I think does a great disservice to 
the American people, and certainly to the law enforcement effort 
that we all think is important. 

Mr. Quigley. Mr. Chairman, my time has expired. 

Chairman ISSA. I thank the gentleman. We now go to the gen- 
tleman from Tennessee, Mr. DesJarlais. Would the gentleman yield 
for 5 seconds? 

Mr. DesJarlais. Yes, sir. 

Chairman IssA. Mr. Attorney General, I would like to make sure 
we make clear, for 2 years, the President didn’t put up a nominee 



169 


for that position nor did he take advantage of recess appointment. 
So I know the gentleman was well-meaning, hut perhaps ill-in- 
formed as to the facts related to the director. 

Mr. DesJarlais. 

Mr. DesJarlais. Mr. Attorney General, thank you for being here. 
If we resolve nothing else here today, we made it painfully clear 
that you have been here at least six times. I don’t think there is 
any question about that. But why, why have we been here six 
times and why is it taking so long to get the answers that we need, 
and how could we have made this process more simple? 

If you will indulge me for a minute, let’s just take a hypothetical 
that I come home from work 1 day and my kitchen window is bro- 
ken out and my boys are there all day playing baseball and I know 
it. Well, you know, I ask them how the window is broken. They 
don’t know. There is a bat laying in the driveway, there are gloves 
laying on the table, but they are just not going to fess up. So I kind 
of think I know what is going on, but we can’t be sure, because 
they are not being straight with me. 

So maybe my wife is a little uncomfortable and she says, well, 
someone could have tried to break in. Maybe we should call the po- 
lice and have them come out and investigate to make sure someone 
didn’t try to break in. So this process goes on and on, even though 
we know that something isn’t right. So, at any rate, I just use that 
loose parallel, and I think you know where I am going. 

So you are here multiple times, and you opened your statement 
with that you are the Attorney General and that you operate under 
the highest standards of integrity and professionalism, and that is 
exactly what you have done and what you are doing, and I really 
have no reason to question that. But when we started asking for 
information, and if they could put up the slide about the Stonewall 
City, if we look at this, these are some of the things we have asked 
for to expedite this process, some of the evidence, if you will, the 
number of documents that we have asked be turned over and what 
we have, the number of witnesses that we have asked to talk to 
and what we have actually gotten. 

These are the kind of things that I guess are frustrating for us 
as we try to get to the bottom of this for Agent Terry’s family, and 
so that these kind of things don’t happen again. Now, you said that 
you were notified probably within 24 hours of Agent Terry’s death, 
was that what I heard you say? Sir? 

Attorney General Holder. I am sorry? 

Mr. DesJarlais. You were notified 

Attorney General Holder. I was looking at Fortress Holder 
there. I was kind of interested. That is not my house, by the way. 

Chairman ISSA. Actually, I think it is closer to Disneyland. We 
are a little concerned that it looks a little too grand for anything 
in our government. 

Mr. DesJarlais. Did you say that you were notified about 24 
hours after Agent Terry’s death? 

Attorney General Holder. I am sorry, yes. 

Mr. DesJarlais. And when you were notified, did they mention 
the Phoenix project to you? 

Attorney General Holder. No. 



170 


Mr. DesJarlais. You had no knowledge that that death was, in 
any way, linked to what went on in Phoenix. There was no mention 
made of that? 

Attorney General Holder. Well, Phoenix, I am sure there was 
some kind of geographic reference. But with regard to Fast and Fu- 
rious, I didn’t know about Fast and Furious until later, January, 
early February. 

Mr. DesJarlais. So there were no bells going off or any concern 
about the gun running or anything at that point? 

Attorney General Holder. No. None of the people who were told 
of the murder were made aware of the tactics. 

Mr. DesJarlais. Okay. Let me reference a letter that was dated 
February 4th, and I think the author is sitting behind you today. 
Assistant Attorney General Ronald Welch. 

Attorney General Holder. Maybe he ought to sit here. 

Chairman IssA. With all due respect, he has had this hot seat 
for real more than you have, Mr. Attorney General. 

Mr. DesJarlais. He submitted a letter to the committee that de- 
nied that ATF sanctioned or knowingly allowed the sale of assault 
weapons and allowed them to be walked, and I think your Depart- 
ment had this letter withdrawn, is that correct? 

Attorney General Holder. That is correct. 

Mr. DesJarlais. How long did it take to withdraw the letter? 

Attorney General Holder. It was formally withdrawn in Decem- 
ber, December 2nd. Prior to that, there were a number of indica- 
tions by me, by Mr. Welch, by Mr. Breuer, that we were not satis- 
fied with the assertions that were contained in that February 2nd 
letter. But it was formally withdrawn on December 2nd. 

Mr. DesJarlais. It wasn’t a deliberate attempt to deceive Con- 
gress? The letter? 

Attorney General Holder. No. I mean, if you look at the mate- 
rials that we made available, the deliberative materials that we 
made available, you can see how people were, I think, really strug- 
gling to try to get the best information they could to Confess as 
quickly as they could, but I think they made a couple of mistakes. 
They needed to take more time and they needed to drill down fur- 
ther. 

Mr. DesJarlais. Inaccurate information. 

Attorney General Holder. They didn’t go down to talk to the 
line people. They stopped at the supervisory level. 

Mr. DesJarlais. Well, it is amazing how quickly 5 minutes goes. 
But I guess as a parent, I want my kids to do the right thing, and 
I am sure as the Attorney General, you want the people who work 
under you to do the right thing. So I guess moving forward, how 
do you feel that you can regain the trust of the American people 
in light of all that has happened with Fast and Furious? 

Attorney General Holder. Well, I will take issue with you again, 
respectfully. I am not sure I have lost trust of the American people 
with regard to this issue. This has become a political thing. I get 
that. That is fine. So there is a certain segment of the American 
people, certainly a certain segment of this Congress that has lost 
faith in my abilities as a result of what has happened in Fast and 
Furious. But I think the way in which to the extent that there are 
people who are willing to be persuaded and who have a contrary 



171 


view now, I think they need to look at the way in which I reacted 
to this, the steps that I have taken, the procedures that I have put 
in place, the personnel changes I have made, and ultimately what 
I am going to do when I have the ability to look at the minority 
report, I assume there will be a majority report, the Inspector Gen- 
eral’s report, and judge at that point whether or not I have reacted 
appropriately to what was a flawed investigation, both in concept 
and in execution. 

Mr. DesJarlais. And with all due respect, sir 

Chairman IssA. The gentleman’s time has expired, so please be 
brief. 

Mr. DesJarlais. Okay. With all due respect, with what we see 
here on your house, not your house, but the letter that was sent 
in, what may appear as political appears now somewhat as a cover- 
up — 

Chairman IssA. The gentleman’s time has expired. 

Mr. DesJarlais. And a lot of information here doesn’t seem to 
be accurate and I think that is why the number of hearings con- 
tinue to go on us, because I don’t think we are getting the full in- 
formation. I apologize. 

Attorney General Holder. Wait a minute. 

Chairman IsSA. If you want to react to something very quickly, 
please. 

Attorney General Holder. Well, I have heard the magic word 
here, “cover-up,” and I want to make clear that there is no attempt 
at any sort of cover-up. We have shared huge amounts of informa- 
tion. We will continue to share huge amounts of information. 

There is a misperception as I think was indicated in the Deputy 
Attorney General’s letter that maybe I can clear up now, that we 
are not going to be hiding behind any kind of privileges or anything 
to not provide this committee with information that it wants. We 
are talking about not providing deliberative material, and that is 
consistent with what executive branch agencies beyond the Justice 
Department always do. 

But with regard to things post-February 5th, February 4th, if 
there is a relevant request, we will respond to that request. The 
only thing we are not talking about responding to is with regard 
to deliberative material. That was a great little diagram that you 
had up there, inaccurate in some pretty glaring ways, but it is not 
up there now. 

Mr. DesJarlais. And that is what my boys with the baseball im- 
plied as well. 

Chairman IssA. I thank the gentleman, and we can have a later 
discussion on how many witnesses and how much information and 
so on. 

For the Attorney General’s edification, and I know Mr. Ron 
Weich will help you, we have published two majority interim re- 
ports, and hopefully he can bring those to your attention. Addition- 
ally, this committee is investigating a number of things post-Feb- 
ruary 4th including related to the false response, and we hope that 
that will be cleared up once you give us or fail to give us a constitu- 
tional basis for withholding. 

With that, we now go to the gentleman from Illinois, Mr. Davis 
is next in order. 



172 


Mr. Davis. Thank you very much, Mr. Chairman. I notice that 
we have heard the terminology “cover-up” a great deal, not only 
during this discussion, but prior to now, and I think there is no 
doubt that there is not a single member of this committee who does 
not recognize the need for some serious change. 

At the outset of this inquiry. Justice Department officials sent a 
letter to Senator Grassley denying that gun walking occurred in 
Fast and Furious. However, the Department has, since then, said 
that the letter contained inaccurate information and that senior 
Department officials relied on adamant denials by ATF and the Ar- 
izona U.S. Attorney’s Office. 

Mr. Attorney General, to your knowledge, did anyone at the De- 
partment of Justice headquarters intend to mislead Congress in re- 
sponding to Senator Grassley’s inquiry? 

Attorney General Holder. No, I don’t believe that. We submitted 
inaccurate information, but it was based on attempts to get that 
which was accurate, and people simply did not have access to it. 
People who we relied on and who we thought were in possession 
of the most accurate information were, in fact, not. There was no 
intention to deceive, but the information provided was regrettably 
inaccurate, and that is why we withdrew the letter. 

Mr. Davis. And you have taken action to hold the personnel 
within ATF and the U.S. Attorney’s Office accountable for con- 
veying inaccurate information to the Department? 

Attorney General Holder. We have certainly looked at those 
places where personnel changes could be made. Some have been 
made. It is possible that others will have to be made. There are re- 
ports that are going on. I will wait for those and see what happens, 
although I have an independent responsibility, separate and apart 
from whatever the Inspector General generates, to make up my 
own mind about what kinds of personnel decisions we need to 
make, I need to make. 

Mr. Davis. The committee has also interviewed a number of — nu- 
merous witnesses, involved in compiling and reviewing the re- 
sponse to Congress. The Department has also produced more than 
1,300 pages of correspondence relating just to the issue of how the 
original letter to Senator Grassley came to be drafted. These docu- 
ments support the account of senior Department of Justice officials 
that they relied on factual assertions from the U.S. Attorney’s Of- 
fice in Phoenix and from ATF. Within 2 months of the February 
4, 2011 letter to the Senator, Department officials told committee 
staff that the letter was unintentionally inaccurate and stated that 
the Department would cooperate with the committee’s investiga- 
tion. The Department has now produced over 6,000 pages of docu- 
ments and made 18 witnesses available for transcribed interviews, 
and, of course, you have testified on matters relating to this issue 
six times. Is the Department cooperating with Congress? 

Attorney General Holder. I think we are. I think that we are 
trying to meet the legitimate requests that have been made by this 
committee. This is a legitimate hearing. This is a legitimate con- 
cern that Congress is raising and I think what we have tried to do 
is respond as best we can to the requests that we have made as 
quickly as we can while, at the same time, making sure that we 
don’t do things that will have a negative impact on our ability to 



173 


do our jobs, and that is with regard to that small amount of infor- 
mation that deals with deliberative materials. 

Mr. Davis. What categories of information are being held and 
why? 

Attorney General Holder. The material being held and I think 
things that we are going to have to try to work our ways through 
are, as I have described, deliberative materials, where we have 
eight people within the Justice Department talking to one another 
about how we are going to respond to a congressional request or 
a media request. That kind of — that is the kind of material that we 
are talking about. We have made available huge amounts of other 
material. We are still in the process of processing other things that 
we will make available. We are acting in a way that executive 
branch agencies have always acted. 

Now, you know, again, we can continue to have conversations 
about even this deliberative material and see if there are ways in 
which we can share it. One of the things I think that we have to 
take into account, and I am not sure anybody has ever done this, 
we made deliberative material, wholesale deliberative material 
available with regard to that February 4th letter, as you say about 
1,300 pages of material. I am not sure I know any Attorney Gen- 
eral who has ever done that before to that degree, and I thought 
it was the appropriate thing, given the inaccuracies that were con- 
tained in that letter. 

Mr. Davis. Thank you very much. I appreciate, Mr. Chairman, 
that we are dealing with Fast and Furious, but I also think we got 
to make sure that we are fast and accurate, as accurate as we can 
possibly be. I yield back. 

Chairman ISSA. I thank the gentleman. I might note for the 
record that the delivery of the February 4th related material oc- 
curred only after I threatened a criminal referral for its inaccuracy. 
It was at that point that we began getting some cooperation, and 
not before. With that, we recognize the gentleman 

Attorney General Holder. Well, Mr. Chairman, our view is that 
we can disagree on this. We think that the provision of that Feb- 
ruary 4th material was done voluntarily, not under coercion. 

Chairman IsSA. All right. My threat of criminal prosecution isn’t 
coercion. It is a fact that we were given false information and it 
was subject already to a subpoena. Cooperation subject to a sub- 
poena — by this committee’s standards, we asked for things long be- 
fore we issued a subpoena. We were told no. We issued a subpoena 
and we were at the level of going next before we got there. So I 
appreciate that everyone on both sides of the aisle has a different 
opinion, but the timeline is undeniable that we have never received 
voluntary cooperation until we had elevated it considerably in any 
case here. And certainly Senator Grassley would say the same 
thing when, in fact, he was told he didn’t have subpoena authority, 
he wasn’t the chairman. That is the reason he originally came to 
this committee, so we could begin the process of getting what he 
was denied in the Senate. 

Attorney General Holder. Well, I can say this. I was the one 
who made the determination that we were going to release that 
February 4th material, the deliberative material, and it was never 
brought to my attention that we had the things that you have just 



174 


said. The decision that I made was based solely on what I felt was 
the right thing to do and without any notion in my mind that there 
was coercion or — I don’t mean coercion in a negative way — that 
there was the threat of criminal prosecution or anything like that. 

My determination was made only on what I thought was right, 
given the provision, the regrettable provision of inaccurate informa- 
tion. Others might have known about that. I did not. And I was 
the one who made the call. 

Chairman ISSA. I don’t want to belabor this point, but I do want 
to make a point. I signed a subpoena October 12th. It was to you. 
So the cooperation came after your office in your name as you as 
the recipient received a subpoena. I hope that you read the sub- 
poenas that come with your name on it. 

Attorney General Holder. But the subpoena, we would not have 
replied in response to that subpoena, we would not have given you 
the deliberative information. That would not have been something 
that we would have provided. 

Chairman IssA. We are entitled to it and we are not going to de- 
bate that any further. Case law is on our side. 

With that, we go to the gentleman from South Carolina, another 
constitutional officer in this branch of government, for 5 minutes. 

Mr. Gowdy. Thank you, Mr. Chairman. 

Mr. Holder, it is provable beyond a reasonable doubt in my judg- 
ment that main Justice had actual or constructive knowledge of 
gun walking, both in Fast and Furious and beforehand, and I am 
going to prove it to you. 

March 2010, DOJ, not U.S. Attorney’s Office in Arizona, DOJ as- 
signed a prosecutor to Fast and Furious. March 2010, Gary 
Grindler, who I believe is your chief of staff, knew about straw pur- 
chases in Fast and Furious and seizures in Mexico, and it doesn’t 
take a very good prosecutor to ask how weapons got from Phoenix 
to Mexico. 

July 2010, a memo to you through the acting deputy AG, that 
memo specifically mentioned Fast and Furious. It specifically men- 
tioned straw purchasers. It specifically mentioned 1,500 firearms 
supplied to Mexican drug dealers. That is July 2010, 1,500 fire- 
arms. 

April 30, 2010, a memo from main Justice employee Weinstein 
to Lanny Breuer, “ATF let a bunch of guns walk.” Then the rest 
of the email is worrying about the negative press connotations that 
may have come from that. Not how to fix the policy, but how to 
mitigate negative press consequences. 

October 2010, Jason Weinstein and James Trusty swapped 
emails, and specifically mentioned gun walking. And, Mr. Attorney 
General, that email is so illustrative of our frustration with the no- 
tion that main Justice did not know about this. I am assuming that 
James Trusty is a main Justice employee, am I correct? 

Attorney General Holder. I believe that is correct. 

Mr. Gowdy. All right. This is the email, and they are specifically 
talking about Fast and Furious, and in fairness, they also mention 
Laura’s Tucson case. They say it is a tricky case given the number 
of guns that have walked, but it is a significant set of prosecutions. 

The email back to that is I am not sure how much grief we are 
going to get from gun walking. It may be more like people are fi- 



175 


nally going to say we went after the people who sent guns down 
there. 

Now, lay aside the merits of that argument. How can you deny 
that people in main Justice knew gun walking was going on before 
that February 4th letter was sent to a Member of Congress? That 
doesn’t even get into the wiretap applications. That doesn’t get to 
the factual predicate that a member of main Justice would have 
had to have read — all of this is before February 4th. That whole 
series of evidence predates Mr. Weich sending a letter to Congress 
denying the tactic. 

So my question to you is this: Who participated in the drafting 
of the letter? 

Attorney General Holder. Well, first, again, you know, this is 
going to be one of those rare instances, you are right. There was 
knowledge within the Justice Department of gun walking. It was 
related to Wide Receiver. 

Mr. Gowdy. Mr. Attorney, with respect, I don’t like interrupting 
people, but with respect, several of these emails specifically men- 
tion Fast and Furious. I am not talking about Wide Receiver. I 
would love to have that conversation some other time. These emails 
and memos specifically mention Fast and Furious. 

Attorney General Holder. They mention Fast and Furious, but 
do they mention gun walking and Fast and Furious. 

Mr. Gowdy. Yes, they do. That is my point. 

Attorney General Holder. I would like to see those. Those I 
would like to see. 

Mr. Gowdy. We got them from you. I mean, we got them from 
main Justice. 

Attorney General Holder. Let’s do this: I promised to give you 
all some information. I would really like to see a memo that says 
gun walking and Fast and Furious. I would like to see that. 

Mr. Gowdy. Well, if you are looking for a videotaped confession, 
I probably can’t give you that. But what I can give you is an email 
from two main Justice employees back and forth specifically men- 
tioning Fast and Furious. “It is a tricky case, given the number of 
guns that have walked.” I don’t know how it can be any clearer 
than that, Mr. Attorney General. And my point is this: The Feb- 
ruary 4th letter 

Chairman IssA. The gentleman will suspend. In order to get to 
the truth, we are going to take a 5-minute recess and have the doc- 
uments given to the Attorney General. I have too many people be- 
hind him trying to give him instructions on what it was and what 
it wasn’t. Nobody leave. Please get the documents to the Attorney 
General. Take what time you need. Use my conference room if you 
need it. 

Attorney General Holder. I can stay here. 

Chairman IsSA. A short recess for 5 minutes. 

[Recess.] 

Chairman IssA. Would everyone take their seats. We are going 
to reconvene as soon as the ranking member is back. 

As we reconvene, I understand that the Attorney General’s peo- 
ple are comfortable with what the document is and the source. I 
would ask for an additional 1 minute for the gentleman to go 
through, restate the document, the source and so on. This is impor- 



176 


tant, that all sides know what is being asked, whether there are 
assumptions of validity, truth and so on, and testimony that may 
accompany it. So, with that, the gentleman from South Carolina 
may resume. 

Mr. Gowdy. Thank you, Mr. Chairman. And in keeping with my 
open file discovery policy, I gave him my documents. They have my 
notes on them. I will go back through the list again. And I would 
also point out, Mr. Attorney General, there are several memos and 
emails I did not include because reasonably, it could be argued that 
they dealt with something other than Fast and Furious. Although 
keep in mind, my question, what I said I was going to prove is that 
DOJ knew Fast and Furious, and beforehand, that gun walking 
was a tactic, because the letter Mr. Welch wrote was not specific 
with respect to gun walking. 

True or false: DOJ assigned a prosecutor to Fast and Furious. 

Attorney General Holder. I believe that’s right. There were peo- 
ple that went down — one or two. I’m not sure. 

Chairman ISSA. The microphone. 

Attorney General Holder. I believe that that is right, that there 
were people who went down, one or two, I am not sure, who went 
down to help with regard to that prosecution, that matter. 

Mr. Gowdy. True or false that Mr. Grindler attended a debrief- 
ing on Fast and Furious where his own notes indicate the seizure 
of weapons in Mexico. 

Attorney General Holder. That — if you are talking about de- 
briefing, if you are talking about the meeting he had with the folks 
from ATF, I guess, in March 2010, 2010 

Mr. Gowdy. Yes, sir, it is March, and there is a note in cursive 
handwriting, “Fast and Furious,” and there was a map attached to 
that of the seizure of weapons in Mexico. And my point was, it 
doesn’t take a very good prosecutor to ask how the guns got from 
Phoenix to Mexico. 

Attorney General Holder. Mr. Grindler has testified and indi- 
cated that what happened in that meeting was that he was briefed 
on the operation and was told that it was essentially a successful 
operation, and no mention of tactics came out of that meeting. 

Mr. Gowdy. All right. There was a memo to you through the act- 
ing deputy AG from the National Drug Intelligence, I can’t recall 
his name because I don’t have my copy of it. Fast and Furious is 
mentioned specifically, straw purchasers are mentioned specifically, 
and 1,500 firearms are mentioned specifically. 

Attorney General Holder. This is what we call a weekly report, 
and I have testified about this I don’t know how many times. There 
are a number of these that coming from NDIC. And for the record 
it is from Michael Walther, who is the Director of the National 
Drug Intelligence Center, and these things just talk about what is 
going on with regard to operations. Again, there is no mention of 
tactics in any of these. There is no indication that inappropriate 
tactics are being used in connection with the underlying investiga- 
tion, and that is why these things were not brought to my attention 
by my staff. 

Mr. Gowdy. Well, it mentions 1,500 firearms and it mentioning 
straw purchasers. And, Mr. Holder, despite the protestations of 
some of your staff behind you that you are being treated unfairly. 



177 


I never once said that you were aware of it. I said that main Jus- 
tice was aware of it. I suspect you didn’t draft the letter on Feb- 
ruary 4th. My question is, who participated in the drafting of it? 
And I’m out of time, so I will go ahead and ask the second ques- 
tion. After that, I would hope perhaps at some point, Mr. Chair- 
man, I could ask the rest of the questions I have. 

But here of my two questions. Who participated in the drafting 
of it? Because the criminal chief head, Lanny Brener, was in Mex- 
ico contemporaneous with the drafting of the February 4th letter 
advocating gun walking. Get that image, that visual image of a let- 
ter being drafted denying gun walking while the criminal chief at 
main Justice is in Mexico advocating for gun walking. 

Chairman IssA. The gentleman’s time has expired. The Attorney 
General may answer. 

Attorney General Holder. In terms of who drafted the February 
4th letter, that is obvious from the materials we shared from with 
you, those 1,300 pages or so. I mean, I don’t — I can’t recall all their 
names, but you will really see, I think, virtually everybody, if not 
everybody, who was involved at the Justice Department in the cre- 
ation of the February 4th letter, so you could review that. 

I don’t think it is correct to say that while the letter was being 
drafted that Mr. Brener was in Mexico advocating for gun walking. 
He was in Mexico. And I think you are talking about a February 
2nd email or report, I guess, from the State Department that indi- 
cated that what he was talking about was the possibility of a 
surveilled delivery of weapons to people who would take them to 
the border and an arrest made at the border, and interestingly, on 
the Mexican side of the border, because the penalties that exist in 
Mexico for gun trafficking, for straw purchasing, are higher than 
they are here in the United States. 

That is what he was proposing. Not gun walking, but something 
very, very different. It was something that was raised, ultimately 
never carried out. 

Chairman IsSA. I thank the gentleman. I apologize. There is no 
additional time at this time. We now go to the gentleman from 
Vermont, Mr. Welch, for 5 minutes. 

Mr. Welch. Thank you very much, Mr. Chairman. 

Two things. Number one, I want to express appreciation for the 
hard work of the people of the ATF. This is an incredible challenge 
that they have. We lost a revered officer. Officer Terry, in the serv- 
ice of his country, and it is because there is a huge problem with 
guns going from the southwest into Mexico. In the past 5 years, 
94,000 guns recovered in Mexico, over 64,000 are traced to the 
United States, and every year, thousands are transported across 
the border. You have very few tools at Justice to try to deal with 
that. You have spoken about that so I won’t ask you. 

But I think it is important for us to ask the question whether 
the point of this hearing is to try to do something that is going to 
help the men and women of law enforcement deal with the major 
problem, or it is going to be something that is going to run into one 
dead end after another without any good outcome. 

Second, we get in our own way a little bit here with the inves- 
tigation because it goes off into many different directions, largely 
because we make some allegations that as we investigate them and 



178 


take up staff time, they don’t go anywhere. And I have great affec- 
tion for my chairman, who is a hard-charging man, but in my expe- 
rience, sometimes you get ahead of yourself on some of the allega- 
tions you make. I will just mention a few. 

You had indicated, let me get it, one of your allegations was that, 
and I quote, you said that folks made a crisis and they are using 
this crisis to somehow take away or limit people’s Second Amend- 
ment rights. That this hearing has nothing to do with that, this 
whole investigation has nothing to do with that. 

Chairman ISSA. Would the gentleman yield? 

Mr. Welch. I would be glad to yield. 

Chairman IsSA. I will be very brief. When the ATF began asking 
and the Justice began asking for additional directly related enforce- 
ment, including the idea that every two-rifle purchase in fact build 
to a data base that Congress has repeatedly limited in statute on 
request, it did seem and does still seem to this Member as though 
a crisis created by gun walking and Brian Terry’s death was, in 
fact, being partially justified by this new requirement at a very in- 
appropriate time, at least the optics of it. 

Mr. Welch. I will reclaim my time, but thank you. I would dis- 
agree. But some of the unsubstantiated allegations though were, 
for instance, the allegations that your office and you made — ac- 
cused Mr. Holder of “authorizing every aspect of this.” There is no 
shred of evidence to back that up. 

Last October, an allegation was made that there was a third gun 
because there was an item of evidence marked number 2 and num- 
ber 3. Those were two guns. It turned out item of evidence was 
number one was not a gun, it was I think a blood sample. So every 
time any one of us makes an allegation that is theory and conjec- 
ture but not based on any solid foundation, it creates a lot of con- 
sternation among the public, takes staff time and ends us into a 
blind alley. 

Now, the real question has always been what did the Attorney 
General know and when did he know it. In the six investigations 
that we have had or the six that have been ongoing, the answer 
to that is the Attorney General was unaware of this activity at 
ATF. 

Now, Mr. Gowdy has raised a good question here, and I want to 
give you a good chance to answer that. But my understanding 
about Mr. Weinstein is that the discussion there was about activi- 
ties that were taking place during the Bush administration, not 
during this administration, and the fact that this tactic may have 
been used in the Bush administration doesn’t mean that you knew 
that it was an ongoing tactic that was used in Fast and Furious. 

So I want to just give you an opportunity to try to elaborate 
whatever answer you want to give to the question that’s been 
raised by Mr. Gowdy. 

Attorney General Holder. Yeah. The email that I had I guess 
from Mr. Gowdy, and I gave it back, is from Jason Weinstein, and 
he has indicated that the reference that he makes in there is not 
to Fast and Furious but it is to Wide Receiver. He testified that 
it is his email. 

You know, I think in some ways he’s the best person to deter- 
mine what his own words meant. I mean. I’ve looked at it, and I 



179 


appreciate the chairman giving us the opportunity to look at it over 
the course of that couple of minutes. But the email is, as I said, 
Jason’s email — Jason Weinstein’s email where he indicated that he 
was talking about Wide Receiver and not Fast and Furious. 

Mr. Welch. Thank you, Mr. Holder. 

I yield back the balance of my time. 

Chairman ISSA. I thank the gentleman. 

If you will yield, I would like to explain something. 

Mr. Welch. I’m out of time. But the chairman, as I understand 
it, has some prerogatives. 

Chairman IssA. Well, I think in the case of an accusation of a 
false statement, I will, briefly. 

Brian Terry’s mother and father were told by a law enforcement 
official that they believed there was a third gun. The missing num- 
ber that was later explained seemed to corroborate it. Ultimately, 
though, three people have reported that they were told there was 
a third weapon. 

Now we don’t know there was or wasn’t. Justice has not con- 
firmed whether or not there’s a ballistic match on the two Fast and 
Furious weapons there, nor have they confirmed they’re looking for 
an additional weapon or an additional shooter. 

I take very seriously getting the facts right. The fact is, we report 
in a limited basis things which in this case the press was way 
ahead of and we said, yes, we’re looking into it. We did — and I will 
admit, we did and do get things wrong during an investigation. We 
do go down blind alleys regularly. Certainly that’s the case. Today’s 
hearing and the 1,300 pages out of 6,000 that were directly related 
to a response to a false statement made to us in writing on Feb- 
ruary 4th is an example where a lot of time has been spent going 
down a false thing. 

The gentleman, though, is correct, and this chairman will admit, 
during this investigation, for more than a year, there have been 
times in which we did not get the information right. So, while cor- 
recting you. I’m not going to say we get it all right. Our goal is to 
get it all right before we publish; and, hopefully, each of our publi- 
cations, majority and minority, is where we make sure we only 
state that which we can substantiate with footnotes. 

Mr. Welch. Thank you, Mr. Chairman. 

Chairman IssA. Thank you. 

We now go to the gentleman from Florida, Mr. Ross. 

Mr. Ross. Thank you, Mr. Chairman. 

Mr. Attorney General, I want to make sure I understand your 
testimony today and the facts as well. You’ve indicated today that 
you were not aware of any gun-walking at all until you were 
briefed in, it looks like, 2011. That would have been January or 
February 2011? 

Attorney General Holder. Yeah, January, February 2011. 

Mr. Ross. And you are specifically speaking of gun-walking, not 
just Fast and Furious? 

Attorney General Holder. No, I didn’t become aware of Fast and 
Furious until about the same time period. 

Mr. Ross. So you were not aware of any gun-walking, including 
Wide Receiver, prior to the end of January 2011? 



180 


Attorney General Holder. No. I learned of Wide Receiver, actu- 
ally, later on. I became aware of Wide Receiver as we were pre- 
paring documents to be submitted to this committee. 

Mr. Ross. And without regard to Mr. Weinstein’s memo, which 
you were not aware of, so you did not know anything about Wide 
Receiver? I just want to make sure that that’s clear. 

Attorney General Holder. No. 

Mr. Ross. So when you said earlier that you were not aware of 
the term Fast and Furious being used, were you aware at the time 
of Mr. Terry’s death of any investigation or program that was going 
on as a result of his death? 

Attorney General Holder. As a result of his death. I certainly 
was aware of the fact that there was an investigation into who 
killed him. There was a criminal investigation that started Decem- 
ber — right at the time of his death, December 14th, 15th. I was 
aware of that. 

Mr. Ross. And in fact you testified today that you were notified 
the date of his death, is that correct? 

Attorney General Holder. Yes. 

Mr. Ross. And was that by Mr. Wilkinson? 

Attorney General Holder. I don’t know. I’m not sure who told 
me. 

Mr. Ross. If I might refresh your recollection, because, pursuant 
to some of the documents that we received Friday evening, we did 
receive some emails; and one of which was an email sent on De- 
cember 15th. It was an email exchange that began from somebody 
to Dennis Burke, your U.S. attorney in Arizona at the time, saying, 
our agent has passed away. Dennis Burke then forwarded that to 
Monty Wilkinson, who was acting as your deputy chief of staff I be- 
lieve at the time. 

Attorney General Holder. Deputy chief of staff. 

Mr. Ross. On December 15th, at 9:41 a.m., Mr. Burke said: Not 
good, 18 miles within. Thereafter, at 10:04 that morning, your dep- 
uty chief of staff, Monty Wilkinson, then said in an email to Mr. 
Burke: Tragic. I have alerted the AG, the Acting DAG, Lisa, etc. 

Would it then be correct to assume that the way you learned of 
Brian Terry’s death was from Mr. Wilkinson himself as a result of 
his statement that he notified you? 

Attorney General Holder. Well, he notified me, but I’m saying 
it’s entirely possibly that I knew about it before Monty told me. 

Mr. Ross. You have no reason to dispute that Monty told you 
about it? 

Attorney General Holder. I suppose he did. But I’m just saying 
that when it comes to that — when a law enforcement death, espe- 
cially involving a Federal law enforcement officer, that’s the kind 
of information that gets to me very, very quickly. 

Mr. Ross. And it should. 

Attorney General Holder. Yes, and from a variety of places. 

Mr. Ross. In fact, to follow up on that, in the email exchange 
later at 11:15 a.m. That morning, there was another email from 
Mr. Wilkinson to Dennis Burke saying, please provide any addi- 
tional details as they become available to you, asking the U.S. at- 
torney in Arizona, please tell us, Mr. U.S. Attorney, we want to 
know more. 



181 


Later that day, in an email from Mr. Burke, the U.S. attorney 
in Arizona, to Mr. Wilkinson, your deputy chief: The guns found in 
the desert near the murdered BP officer connect hack to the inves- 
tigation we were going to talk about. They were AK-47s purchased 
at a Phoenix gun store. 

My question to you, Mr. Attorney General, were you aware of 
this email exchange? Were you aware of an investigation ongoing 
that involved a Phoenix gun store and specifically AK-47s at the 
time? 

Attorney General Holder. No, I wasn’t. But what’s interesting — 
listen to what you just said. He said that we were going to talk 
about, we were going to talk about, which implies that they did not 
talk about. 

Mr. Ross. Not prior to but subsequent to. Subsequent to the 
death. Mr. Wilkinson has already told you about Brian Terry’s 
death. Now he’s being informed about an investigation involving 
the slain officer, involving a gun store in Phoenix. Did that not 
raise any sense of awareness? Did it not raise any sense of in- 
trigue — if not from Mr. Wilkinson, at least from you — to say, what 
investigation then is ongoing? 

Attorney General Holder. I was not told about this. I was un- 
aware of this. And unless there was some indication that 

Mr. Ross. I appreciate that. But you’ve testified today that you 
are a hands-on manager. 

Attorney General Holder. What I was saying was that, unless 
there’s some indication that the tactics that we are so against were 
employed there, all we know is that this was something — this was 
a tragic event connected to an ongoing investigation. 

Mr. Ross. Involving a gun store and an AK-47. What else do we 
have to say, involving a cartel? 

I mean, come on. From December 15th until the end of January, 
you don’t learn about a gun-walking operation ongoing in your De- 
partment? And I’m supposed to go home and tell my constituency 
that that’s the facts? Mr. Attorney General, I have a hard time be- 
lieving that. 

And if you are, if you are responsible for those underneath your 
direction, I would assume that those underneath your direction 
would make sure you are fully informed of all incidents of signifi- 
cance, including an ongoing investigation subsequent to an agent’s 
death. 

Attorney General Holder. What I would say is that, in the ab- 
sence of an indication that these inappropriate tactics were used, 
you have here a tragic death connected to an ongoing Federal mat- 
ter, an ongoing investigation. You know, unfortunately, that hap- 
pens all the time, too many times. 

What makes this case, this situation unique are the inappro- 
priate tactics. And I don’t think there’s any indication that Mr. 
Wilkinson or anybody else was aware of these tactics until the Jan- 
uary, February timeframe — late January, early February time- 
frame. 

Mr. Ross. So you made no inquiry as to whether this investiga- 
tion involved gun-walking? 

Attorney General Holder. I’m sorry? 



182 


Mr. Ross. You made no inquiry as to the investigation involving 
Brian Terry’s death involved gun-walking? 

Attorney General Holder. That information was not brought to 
my attention, so I would not have 

Mr. Ross. But you made no inquiry. 

Chairman IssA. The gentleman’s time has expired. 

Mr. Ross. I’m not asking if it was brought to your attention. You 
yourself made no inquiry with regard to that. 

Attorney General Holder. There was no indication. There was 
no basis for us to believe that gun-walking was at all a part of any 
of this stuff. I didn’t know anything about gun-walking or the use 
of that technique until February. And by February the 28th, in 
early March, I said, guess what, we’re not doing gun-walking. It 
took me a month — or less than a month — to say the gun-walking 
was inappropriate. Brought to my attention, fairly rapid response 
to say, don’t ever do this again. 

Chairman IsSA. I thank the gentleman. 

We now go to the gentlelady from California, Ms. Speier, for 5 
minutes. 

Ms. Speier. Mr. Chairman, thank you. 

Over here. Attorney General. Last person on the totem pole, so 
to speak. 

Chairman IsSA. She will be moving up in future years. 

Ms. Speier. Don’t count on it. 

In any case, first of all, let me say that I think we can stipulate 
for the record that this hideous chapter in the Attorney General’s 
Office dating back to 2006 is one that we never want to see re- 
peated. But I think it’s important for us to recognize that this has 
been going on for a long time; and, but for the death of Agent 
Terry, would it still be going on today? And that’s one of the things 
that continues to trouble me. 

For the record, Mr. Chairman, I would like to ask unanimous 
consent to put into the record a memo provided to then Attorney 
General Mukasey in November 2007 in which it specified to him, 
of particular importance ATF has recently worked jointly with 
Mexico on the first-ever attempts to have controlled delivery of 
weapons being smuggled into Mexico by a major arms trafficker. 
While the first attempts at the controlled delivery have not been 
successful, the investigation is ongoing and ATF would like to ex- 
pand the possibility of such joint investigations and controlled de- 
livery. 

Chairman IsSA. I’m more than happy to have that piece of dis- 
covery placed in the record. No objection. 

Ms. Speier. Thank you. 

[The information referred to follows:] 



183 


MEETING OF THE ATTORNE’i’ GENERAL 
M !TH MEXICAN ATTORNEY GENERAL MEDINA MORA 
Aitomey General's Conference Room 
November 16. 2007 
(Friedrich. O'ConDOT/Roih, Swanz) 


PURPOSE 


Mexican .Allorney General Eduardo .Medina Mcira wishes to meet with \ou to reafilnn 
the high importance he places on continuing the close bilalerai law cnibrcenieni 
relationship he esuabiished ^^■ith .Attorney General Gonzales. .Attorney General 
.Medina Mora's visit coincides with the fall meeting of the USXlexico Senior Law 
Enforcement Pienan' (■‘SLEP’'), chaired by DO.I'CRM, which brings together a 
number of working groups that focus on US-XIexico law enforcement issues. 

background 




HOGR HRNDZ 003239 



184 


|RC-2 


G. Aims Trafficking 

Mexico has repeatecilv expressed concern regarding the smuggling of weapons from 
the US into Mexico, rchich the Govermnent of Mexico asserts has fueled the violence of 
Mexican drug cartels. See,, e.g,, "US Guns Behind Cartel Killings in Mexico," Wafkinglon 
Pest 10/29/07, ,A01 {noting the 9/24 assassination of a Mexican state police officer, and 
an attack on the same day on a federal police office in Tijuana, and stating: "The high- 
porvered guns used in both incidents on the evening of Sept. 24 undoubtedly came from 
the United States, sav police here [in Mexico], who estimate that f 00 percent of drug- 
related killings are committed with smuggled US rveapons,") 

In response to these concerns, DOJ's ATF has committed significant resources to 
address the issue of gun smuggling into Mexico. ATF has three attaches in Mexico Citty 
and tsvo TOY agents in Monterrey. During this past week, more than 30 .ATF agents and 
analysts have been meeting at the El Paso Intelligence Center ("EPIC") as part of the 
South'west Border Initiative's "Project Gunrunner." ATF's goals are to coordinate Federal 
latv enforcement activities on the U.S, side of the border involving gun smuggling, and to 
w’ork cooperatively with its counterparts in Mexico to improve information sharing, 
assist them in impro^■^ng their training and technological capacity, and increase the 
number and qualih’ of firearms trace requests from Mexico, One critical part of this effort 
is to for the USG to fund Spanish E-trace, which would allow .Mexican law enforcement 
submit firea.rms trace requests to .ATF's National Tracing Center. 

- Of particular importance, ATF has recently worked jointh' with Mexico on tlie first- 

ever attempt to have a controlled delivery of iveapons being smuggled into Mexico by a 
major arms trafficker. While the first attempts at this controlled delivery have not been 
successful, the investigation is ongoing, and ATF \voujd like to expand the possibility of 
such.joint inv.estigations and controlled deliveries - .since only then will it be possible to 
investigate an enttre smuggling network, rather than arresting simply a .single smuggler, 
To that end, it is essential that a Mexican vetted unit be assigned to work \vith .ATF in this 
regard. ATF's attache in Mexico City has briefed Attorney General Medina Mora on this 
attempted controlled delivery', and stressed the importance of such a vetted unit being 
assigned. 

H. Asset Forfeiturgf Money Laundering 


HOGR HRNDZ 003240 





185 


Ms. Speier. Attorney General, were you ever told about General 
Mukasey’s briefing regarding controlled deliveries, another word 
for gun-walking? 

Attorney General Holder. I didn’t find out about that until late 
in this process as we were developing documents to submit to this 
committee with regard to operation Wide Receiver. I didn’t know 
before that. 

Ms. Speier. All right. 

This committee is Government Oversight and Reform, so I would 
like to spend a couple of minutes on the reform side. Hopefully, we 
are not just having these hearings to continue to beat up on what 
is an atrocious chapter in our history, but how do we make sure 
that it doesn’t happen again? So speak to me about the fact that 
we do not have a Federal statute on gun trafficking. 

Attorney General Holder. We don’t have a tool that we really 
need. We need to have an ability to say that gun trafficking is in- 
appropriate, it’s wrong, and there’s a Federal criminal penalty for 
it. And a statute can be drawn in such a way that it is respectful 
of the Second Amendment rights that all American enjoy. What I’m 
talking about are people who are doing things for criminal, illicit 
purposes that put the American people at risk and put at risk our 
colleagues, our neighbors south of the border, in Mexico. 

Ms. Speier. What other things do we need in place to avoid this 
kind of activity? From your own testimony, you said that you could 
trace 60,000 weapons, but that’s just a small percentage of what’s 
really being trafficked from the United States into Mexico. 

Attorney General Holder. Well, I think that’s right. Sixty-four 
thousand weapons have been traced from the United States to 
Mexico. But those are the ones that have been traced. There are 
substantially a greater number of guns that have not been traced. 
We need to have a statute that will make meaningful what I think 
as a crime straw purchasing and make meanin^ul a penalty for 
people who engage in straw purchasing to get around the rules 
that this Congress enacted and that I am charged with enforcing. 

We need to have an ATF head who is confirmed. I’m glad to hear 
the chairman say that he would support that. 

There are other management changes that we have made and, 
as I said before, that are consistent with the minority report; and 
I think that you all have done a really good job in making that 
list — there are actually a couple that we didn’t think of that I am 
looking at that I think we will try to implement as well. 

There are a whole variety of things that can be done in a way 
that, if we are truly going to put partisan concerns aside, put lob- 
bying concerns aside, and have some courage — because it will take 
some courage, because this will not be universally approved — we 
can really make a difference in the lives of the American people 
and protect the lives of law enforcement officers. 

Ms. Speier. Have you developed a statute that you could provide 
to the committee around penalizing straw purchasers and gun traf- 
ficking? 

Attorney General Holder. I can check with our legislative af- 
fairs folks and see exactly what it is that we have there. 

As I indicated before. Congresswoman Maloney and Congress- 
man Cummings have actually put something on paper that I think 



186 


is a good place for us to start, but I can also check and see what 
it is that we have and that we can share with this committee. 

Ms. Speier. All right. I would appreciate that. 

My time has expired. 

Chairman ISSA. I thank the gentlelady. 

I now ask unanimous consent that discovery documents HOGR 
DOJ 005752, 53, and 54 be placed in the record along with the 
gentlelady’s documents from earlier, just immediately before. These 
show Lanny Breuer lobbying for gun-walking in a coordinated fash- 
ion across the border for people to be arrested in Mexico on Feb- 
ruary 4. 

Without objection, so ordered. 

[The information referred to follows:] 



187 


From: 

Sent: 

To: 

Cc: 


Subject: 

Attachments: 


Garcia, Anthony P (Mexico Ci^) I 

Friday, February 04. 2011 3:49 PM 
Lurie, Adam 

Swartz. Bruce; Blanco, Kenneth; Weinstein, Jason; Warlow, Molly; Rodriguez, Mary; 

McMilien, Jerold; Snyder, Christopher A (Mexico Cit y); Wyatt, Arth ur 

AAG Breuer visit to Mexico 
[Untitled]. pdf 


Adam, 

Below is a synopsis of Assistant Attorney General (AAG) Lanny Brener's meetings with the Mexican Attorney General’s 
Office (PGR), Mexico’s Federal Police (SSP), and the Secretary of Foreign Relations (SRE). Sr, RLA Kevin Sundwall 
(OPDAT) will cover the SWB US Attorneys’ Conference. 

AAG Breuer met with PGR Attorney General Arturo Chavez Chavez, SSP Secretary Genaro Garcia Luna, and SRE 
Undersecretary Julian Ventura on Wednesday. February 2. 

Meeting with PGR 

A, AG Breuer. Deputy Chief of Mission (DCM) John Feeiey, DAAG Blanco. Kevin Sundwall, and I met with AG Chavez 
Chavez, Deputy Attorney Genera! (DAG) Jorge Lara, DAG Marisela Morales, Chief of Staff Enrique Barber, and 
international Coordinator Guillermo Vails. 


CJ Murder Invcstiaation 



HOGR DOJ 005752 






AAG Breuer. DCM Feeley, DAAG Bianco, Kevin, and I met with Secretary Garda Luna, Lie. Jose Polo Oleyza {Chief of 
Staff), and Lie. Ramon Eduardo Pequeno Garcia (Chief of Counter-Narcotics). 


Sharing Evidence 


RC-5 


UU Pmaram 


RC-2 


B-traco 


RC-2 


AAG Breuer, DCM Feeley, Kevin, and I met with Ambassador Julian Ventura. Chief of Staff Enrique Rojo Stein. Director 
Genera! for Judicial Affairs Sandra Hernandez, and olhcrs. 


US Extradition Requests to Mexico 


RC'2 


Merida Initiative 


RC-2 


Public/Press Announcements 


RC-2 


HOGR DOJ 005753 














189 


Arms Trafficking 

Ventura stated that greater coordination and flow of information would be helpful to combat arms trafficking into 
Mexico. Ventura suggested a High Level meeting in ttie ^ing to address the arms trafficking issue. (Please 
note ftiat the idea of holding a High Level Meeting in the spring also came up during Secretary Clinton's visit to 
Mexico last week). 

US Sentencing Guidelines 

AAG Breuer told Ventura that there has been a proposed increase in the US Sentencing Guidelines for 
stravv purcfTaseTs. AAG Breuer suggestedlhat aletter from tiie SRE or'RJRln support of increased 
sentencing guidelines for straw purdiasers may be useful. 


Proposed Cross-Border Ooerafion 

AAG Breuer suggested allowing straw purchasers cross Into Mexico so SSP can arrest and PGR can 
prosecute and convict. Such roordinate^gerations between the US and Mexico may send a strong 
message to arms traffickers. | 


Accreditation for DOJ Attomevs assianad to Mexico 




Please let me know if you have additional questions regarding the meetings. 

Tony 


Tony Garcia 
DOJ Attache 



SBU 

This email Is UNCLASSIFIED. 


3 


HOGR DOJ 005754 



190 


Mr. Cummings. Mr. Chairman, I would just reserve because I 
don’t think that accurately describes that document. 

Chairman IssA. Well, the document speaks for itself. 

Mr. Cummings. He’s not talking about gun-walking. I thought he 
was talking about a coordinated effort with the Mexican Govern- 
ment to follow those guns and then make a cooperative effort 

Chairman IsSA. Which is what 

Mr. Cummings. Not letting it just walk but 

Chairman IsSA. Right. But the definition of gun-walking which 
the minority has chosen to put on Wide Receiver — ^Wide Receiver 
was a coordinated effort where they followed to the border the 
guns. The problem with Wide Receiver and the reason it had to be 
abandoned is that they found that, as it crossed the border, repeat- 
edly they lost control of the guns. 

The program described here in the email related to Mr. Breuer 
is exactly the same program. Now maybe if you do something 
enough times you might get it different in the outcome. But the 
program, the attempt to follow from the store to the border and 
then pass off to Mexican authorities is, in fact. Wide Receiver. That 
was that program which differs from Fast and Furious, where in 
Fast and Furious, they told people to peel away and they’d find the 
guns later. 

There is a distinct difference, but there is no difference between 
what this document shows and the stated Wide Receiver. The fact 
is Lanny Breuer in this document was clearly trying to say, let’s 
do Wide Receiver again, but let’s get it right this time. 

Mr. Cummings. Mr. Chairman, I reserve. I would like to see the 
document. 

Chairman IssA. You have the document. This is DOJ 0057-54. 

Mr. Cummings. Go ahead. 

Chairman IssA. No. You have reserved. I will wait. 

Mr. Cummings. Mr. Chairman, again, I think we have a differing 
opinions of what gun-walking is. I will withdraw my reservation. 

Chairman IssA. I thank the gentleman. 

And you are right. We can disagree as to what the document 
means. My discussion was what I believe it means. But you are ab- 
solutely right. Ms. Speier and myself could both be wrong about 
what the document means, but I appreciate your allowing it to be 
placed in the record. 

I’m going to ask unanimous consent that DOJ 0058-11 and 12 
be placed in the record, but I will reserve myself until the minority 
has a chance to see it and be comfortable with it. 

[The information referred to follows:] 



191 


From: Cunnir^ham, Patrick (USAA^, 

To: Burke, Dennis (USAA^; Cfemens. ^ltey (USAA2): Morrissey, Mike (USAAZ); Scheel, Ann 

(USAAZ): Hurley, Enrory Wotrfridge, Angela (USAAZ): Evsns, John (USAAZ) 3; Hernandez, 

Rachel (USAAZ); Sherwood, Robert (USAA55 <Cot^ractor> 

Sent: 3/10/2011 10:53:32 AM 

Subject: RE: Follow Up From Cortference Call 


Dennis; I will cal! Bill, Matt, Nate and Doug Colemaa Wa do not want this email circulating, correct? PJC 


From: Burke, Dennis (USAAZ) 

Sent; Thursday, March 10, 2011 7:35 AM 

To; Clemens, Shelley (USAAZ); Cunningham, Patrick (USSiAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory 
(USAAZ); Woolridge, Angela (USAAZ); Evans, John (USA^ 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ) 
<Contnactor> 

Subject: Re: Follow Up From Conference Call 
Thx. 


From: Clemens, Shelley (USAAZ) 

Sent: Thursday, March 10, 2011 09:32 AM 

To: Burke, Dennis (USAAZ); Cunningham, Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory 
(USAAZ); Woolridge, Angela (USAAZ); E\rans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ) 
<Contractor> 

Subject: RE: Follow Up From Conference OH 
Pat, 

! am assuming your group wll notify the Phoenix federal agencies. I wil notify our local RAC, ASACs, and DSAC. 
Shelley 


From: Burke^ Dennis (USAAZ) 

Semi Wednesday/ Ma 2011 6:27 PM 

To; Cunriinghaiii, Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Clemens, Shelley (USAAZ); Hurley, Emory 
(USAAZ); woolridge, Angela (USAAZ); Evans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ) 
<Contractor> 

Subject: Fw: Follow Up From Conference Cali 
Interesting, 

I was not on the call. 


From: Cole, James (SMO) 

Sent: Wednesday, March 09 , 2011 08:21 PM 

To: Moreno, Angel (USATXS); Murphy, John E. (USATXW); Burke, Dennis (USAAZ); Gonzales, Kenneth (USANM); Duffy, Laura 
(USACAS) 

Subject: Follow Up From Conference Cali 


Dear USAs; 


HOGR DOJ 005811 



192 


Thank you for your time this evening, I wanted to send this just to summarize our 
telephone conversation and inform those of you who were unable to participate. 


First, thank you for the work you do to fight gun trafficking. It is very 
important . 

As I said on the call, to avoid any potential confusion, I want to reiterate the 
Department's policy: We should not design or conduct undercover operations which 
include guns crossing the border. If we have knowledge that guns are about to cross 
the border, we must take immediate action to stop the firearms from crossing the 
border, even if that prematurely terminates or otherwise jeopardizes an 
investigation . 

We know you have difficult jobs to do and we fully support and appreciate your 
efforts to stop the flow of firearms through the apprehension and prosecution of all 
responsible parties. 

As I said on our call, please make sure the SACs in your districts understand the 
policy. 

Jim 


HOGR DOJ 005812 



193 


Chairman ISSA. And, with that, we now go to the gentleman from 
Texas who has patiently been waiting down in the cheap seats, Mr. 
Farenthold. 

Mr. Farenthold. Thank you very much. Chairman Issa. 

Mr. Attorney General, I want to follow up on something Mr. Ross 
said, because I think we’re looking at management and how the 
DOJ is managed. I think you told him that you were informed 
about Agent Terry’s death but never heard anything back about it 
being associated with the guns that walked. 

I’m the kind of person — maybe our management styles are dif- 
ferent — that if an employee under my charge was killed in the line 
of duty, I would want to be briefed almost on a daily basis as to 
how that investigation is going. I’m asking again, you didn’t hear 
for quite some time that the Fast and Furious guns were involved 
in this? 

Attorney General Holder. Well, no. That’s correct. I didn’t hear 
about that for a while. 

I mean, you know, to draw a distinction here — and I’m almost 
hesitant to do this — we are talking about a brave law enforcement 
officer. Well, it wasn’t a part — that doesn’t matter. 

I was brought up to date about, you know, the ongoing investiga- 
tion, what we were doing at the Justice Department but did not 
hear anything about the connection between that death and the 
gun-walking tactics until, as I said, February 2011. 

Mr. Farenthold. All right. Well, we’ve been investigating Fast 
and Furious for some time. Y’all have been looking at it internally. 
You’ve constantly blamed the ATF or the U.S. Attorney’s Office in 
Arizona, I think. Mr. Gowdy’s made it clear through some of his 
questions that it actually has gone up to Main Justice. But I just 
don’t see y’all doing anything. 

There were several questions earlier about what you’ve done. 
And nobody’s been disciplined. Nobody’s been fired. There hasn’t 
even been a letter put in. I don’t think that’s good management, 
and I think that’s the reason that many of my colleagues — myself 
included — have suggested it might be time for you to resign. 

My question is that, knowing what you know about the handling 
of Operation Fast and Furious, do you believe you’re capable of 
running the top law enforcement agency in this country? And can 
you tell the taxpayers that you’re the most qualified person to man- 
age the Department of Justice? 

Attorney General Holder. First off, let me just say we have not 
blamed — I have not blamed the people in Phoenix, either ATF or 
the U.S. Attorney’s Office there. I mean, they’re good people down 
there. They work hard. And I’m not going to allow that to stand 
in the record. I’m not blaming anybody. We want to find out who 
in those offices might have been responsible as well as who at Main 
Justice is responsible. 

Mr. Farenthold. Don’t you think 13 months is a little long to 
run that investigation? 

Attorney General Holder. You have to understand something. I 
don’t have the ability to do a top-to-bottom investigation here be- 
cause of the Inspector General’s investigation, and I have to respect 
that. 



194 


Now with regard to my capacities to run this Department, you 
know, I’ll let the record speak for itself. People have differing views 
in this room about Fast and Furious and my role in it. 

Mr. Farenthold. I just have a limited amount of time. 

You’ve indicated 

Attorney General Holder. You asked a question, I mean, ques- 
tioning whether or not I should resign. And I don’t have a chance 
to respond to that? 

Mr. Farenthold. That’s fine. 

Attorney General Holder. Thank you. 

So if you are going to judge me and ask me to resign, as you 
have and as have some of your colleagues, you know, you’ve asked 
a hroad question. And how you judge that, well, you look at every- 
thing that I’ve done in this Department for the past 3 years and 
you look at the Department and the state that it was in when I 
got here — a dispirited Department that had gone through scandals, 
that had the traditions of the Department turned on its head. It 
had been politicized. 

I will stand on what I’ve done with regard to the Criminal Divi- 
sion, the Antitrust Division, with regard to the Civil Division and 
the fraud money that we’ve brought in, the great work we’ve done 
on national security. And if you want to say that I am a person not 
qualified to be Attorney General you take that into account as well. 

Mr. Farenthold. Well, then why are we withholding some of the 
deliberative documents, too? That’s another one of my concerns. 
Really, a lot of times here in Washington it’s not what actually 
happens that you get hung on. It’s the cover-ups. So I’m concerned 
that some of those documents are going to show some of the theo- 
ries that have been floated around that maybe some delays were 
put on stopping Fast and Furious based on some of the things that 
the people on the other side of the aisle are calling for now in addi- 
tional and more stricter laws. 

I mean, if there was a political purpose to that, I think the Amer- 
ican people have a right to know about that. So I would urge you 
to release those documents. Let us look at them and let the Amer- 
ican people make that decision. 

But I’m almost out of time, and I’ve learned from the testimony 
here that things tend not to bubble up to your desk very often. I 
did want to make sure that you were aware of an operation with 
the DEA that has two Houston, Texas, based pilots being detained 
in Panama over money laundering. I realize that’s out of the scope 
of this investigation. You can choose to comment on it or not. But 
I did want to make sure it bubbled up to your level. 

And my time has expired. 

Chairman ISSA. I thank the gentleman. 

Will the gentleman yield? 

Mr. Farenthold. Yes. 

Chairman IsSA. Just quickly, the minority’s not objecting to the 
Cole document from March 10, 2011. So that is placed in the 
record. 

I thank the gentleman. 

[The information referred to follows:] 



195 


From: Cunnir^ham, Patrick (USAA25 

To: Burice, Dennis (USAAZ)r GtemenSi Sheley (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann 

(USAAZ); Huriey. Emory {USAA^rWoolrWge, Ange}af(i^AAZ): Evans, John (USAAZ) 3; Hernandez, 
Rachel (USAAZ); Sherwood, Robert (USAAZ) <Coraractor> 

Sent: 3/10/2011 10:53:32 AM 

Subject: RE; Follow Up From Conference Cal 


Denrss: I will call BHI, Matt, Nate and Doug Colemaa We do not want tNs email circulating, correct? PJC 


Fiwi; Burke, Dennis (USAAZ) 

Sent: Thursday, March 10, 2011 7:35 AM 

To: Clemens, Shelley (USAAZ); Cunningham, Patrick (USAAZ); Mom'ssey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory 
(USAAZ); Wooiridge, Angela (USAAZ); Evans, John (USAAZyS; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ) 
<ContraGtor> 

Subject: Re: Follow Up From Conference Call 
Thx, 


From: Clemens, Shelley (USAAZ) 

Sent. Thursday, March 10, 2011 09:32 AM 

To: Burke, Dennis (USAAZ); Cunningham, Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory 
(USAAZ); Wooiridge, Angela (USAAZ); Evans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ) 
<Contractor> 

Subject: RE: Follow Up From Conference Call 
Pat. 

I am assLUTiing yoir group \mII notify the Phoenix federal agencies. I vwll notify oir local RAC, ASACs, and DSAC. 
Shelley 


From; Burke» Dennis (USAAZ) 

SerttrWedneklay/March 09, 2011 6:27 PM 

To; Guriningliam; Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Clemens, Shelley (USAAZ); Hurley, Emory 
(USAAZ); Wooiridge, Angela (USAAZ); Evans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwooi Robert (USAAZ) 
<ContrBCtor> 

Subject: Fw: Follow Up From Conference Call 

Interesting. 

i was not on the call. 


Fr€»n: Cole, James (SMO) 

Sent: Wednesday, March 09, 2011 08:21 PM 

To: Moreno, Angel (USATXS); Murphy, John E. (USATXW); Buri^e, Dennis (USAAZ); Gonzales, Kenneth (USANM); Duffy, Laura 
(USACAS) 

Subject: Follow Up From Conference Call 


Dear USAs: 


HOGRDOJ 005811 



196 


Thank you for your time this evening, I wanted to send this just to summarize our 
telephone conversation and inform those of you who were unable to participate. 


First, thank you for the work you do to fight gun trafficking. It is very 
important. 

As I said on the call, to avoid any potential confusion, I want to reiterate the 
Department-’s policy: We should not design or conduct undercover operations which 
include guns crossing the border. If we have knowledge that guns are about to cross 
the border, we must take immediate action to stop the firearms from crossing the 
border, even if that prematurely terminates or otherwise jeopardizes an 
investigation. 

We know you have difficult jobs to do and we fully support and appreciate your 
efforts to stop the flow of firearms through the apprehension and prosecution of all 
responsible parties. 

As I said on our call, please make sure the SACs in your districts understand the 
policy. 

Jim 


HOGR DOJ 005812 



197 


Chairman ISSA. And with that, we go 

Mr. Farenthold. Excuse me. Did you wish to answer? You are 
welcome to or not. 

Chairman IsSA. The gentleman may respond. 

Attorney General Holder. There is a limited amount of informa- 
tion I can talk about that. 

The DEA leadership has told my staff that the incident you de- 
scribed in your letter was not a DEA operation. I can’t respond 
much more than that. But DEA can provide your staff a briefing 
with regard to that outside of this setting. 

Mr. Farenthold. That’s fine. I’m just worried about the pilots. 

Attorney General Holder. That’s fine. Sure. 

Chairman IssA. I thank the Attorney General. On December 5th, 
we actually asked for a briefing on that. We appreciate your com- 
mitment to that briefing in an appropriate setting. 

Now we go to the very patient gentleman from Missouri, Mr. 
Clay. 

Mr. Clay. Thank you, Mr. Chairman, and thank you. Attorney 
General Holder, for, once again, coming before the committee. 

Our job on this committee is oversight. It is to examine the facts 
and come to conclusions. People of good faith may disagree. Rea- 
sonable people can look at the same evidence and come to differing 
conclusions. 

In this case, we’re not looking at evidence and then coming to 
conclusions. Rather, the majority is not looking at evidence and 
coming to conclusions. The majority came to a conclusion before 
any facts were examined, before any evidence was produced, before 
any witnesses were given the opportunity to testify. And that con- 
clusion was that there was a scandal, a scandal that the majority 
could exploit for political gain, an Obama administration scandal 
that could garner the majority the splashy headlines they promised 
when they took control of this committee. 

Remember now, this is when the chairman of this committee 
promised the American people that he would hold seven hearings 
a week times 40 weeks. These plans weren’t reflective of actual evi- 
dence, of actual facts already gathered that would determine the 
number and pace of hearings. This was at a time when, flush with 
victory, the majority began to display the hubris that would be 
their hallmark for the last 13 months. 

Chairman IsSA. Would the gentleman yield? 

Mr. Clay. Not yet. This was at a time when the incoming chair- 
man on the committee said that President Obama has been one of 
the most corrupt Presidents in modern time. Since then, we have 
sat through politicized hearing after politicized hearing and we 
have seen the majority level wild accusations against the adminis- 
tration with absolutely no basis in fact. We have watched the ma- 
jority berate witnesses. We have heard the majority accuse wit- 
nesses of lying. We have seen the majority attempt to deny us the 
right to call our own witnesses, and we have seen what we see here 
once again today. 

The majority has been and is accusing the administration, the 
Justice Department, the Attorney General of participating in a vast 
conspiracy. The chairman has compared the Fast and Furious oper- 
ation with Iran-Contra. This was a completely irresponsible com- 



198 


parison. Iran-Contra was, indeed, a vast conspiracy, one that 
reached directly to the Oval Office, and evidence proved that. 

It is irresponsible to take that gavel to assume the grave respon- 
sibility of leading this committee and to wield the power to sub- 
poena, the power to call and examine witnesses, the power to in- 
vestigate like a political instrument, solely like a political instru- 
ment, to accuse the AG of — no, I won’t repeat the irresponsible 
wholly manufactured accusation, but to do so without evidence is 
irresponsible. 

Now there is evidence Fast and Furious was a fatally flawed op- 
eration. We know that from the evidence. We also know from the 
evidence that an Attorney General knew about flawed failed gun- 
walking operations. We know this from the documents produced by 
the Justice Department. However, that was Attorney General 
Mukasey in President Bush’s administration. 

So we have evidence of knowledge at the highest level of the Jus- 
tice Department about a bad, flawed policy. Does the majority call 
former Attorney General Mukasey to testify? Does the majority ex- 
amine the full history of these operations in a fair and responsible 
manner? Does the majority even attempt to avoid the appearance 
that this is a politically motivated attack? 

I think from the evidence we know the answer to those ques- 
tions; and, Mr. Chairman, I will now yield the balance of my time 
to the ranking member. 

Chairman ISSA. The ranking member has 5 seconds. 

Mr. Cummings. Mr. Chairman in light of the latitude that you’ve 
given on your side, I would ask for 2 minutes. Unanimous consent. 

Chairman IsSA. Any objections? 

Without objection, the gentleman from Missouri has an addi- 
tional 2 minutes. 

Mr. Cummings. Thank you very much. 

I’m going to look at this organizational chart. Attorney General, 
and I see every single person with immediate supervisory responsi- 
bility of Operation Fast and Furious has been removed or reas- 
signed. 

Let’s look at ATF. Here are the people that have been removed 
from their management positions and from any operational roles: 
the director, the deputy director, the assistant director, the deputy 
assistant director, the special agent in charge, the assistant special 
agent in charge, and the group’s supervisor. Is that right? 

Attorney General Holder. I can’t see the bottom of the chart, 
but I think that’s all accurate. 

Mr. Cummings. Similarly, at the U.S. Attorney’s Office in Ari- 
zona, all of the key personnel involved in Fast and Furious have 
resigned, been removed, or been reassigned: the U.S. attorney, the 
criminal chief, the section head, and line prosecutor. Is that right? 

Attorney General Holder. I believe that’s all correct as well. 

Mr. Cummings. One of the criticisms is that no one has been ac- 
tually fired. Can you explain why you are waiting to take final per- 
sonnel actions against some of these employees? 

Attorney General Holder. Well, I don’t want to single those peo- 
ple out, because the universe is actually larger than that. But cer- 
tainly one of the things that I’m going to take into consideration 
is what we find from the Inspector General report and what factual 



199 


findings that she makes in addition to the material that I have just 
gotten I guess over the past couple of days, the minority report. 

I think the chairman’s right. There are a couple of majority re- 
ports I should look at as well before I make final determinations. 

Mr. Cummings. Would a confirmed director of ATF be able to im- 
prove management supervision? 

Attorney General Holder. Oh, I don’t think there’s any question 
about that. 

Again, Todd Jones has done a great job, and he has put in place 
great number of reforms and has done a lot of the things that you 
are pointing up to there on the ATF side. But I think you need to 
have a person with the prestige of a Senate confirmation to really 
run an agency in the way that we would like it to be run. 

Mr. Cummings. Thank you, Mr. Chairman. 

Chairman ISSA. I thank the gentleman, and I thank you for mak- 
ing my point that no one in Washington has been held accountable. 

And, with that, we go to the gentleman from Pennsylvania, Mr. 
Kelly. 

Mr. Kelly. Thank you, Mr. Chairman. 

Chairman IssA. Another cheap seat. I’m afraid. You will move 
up, though. 

Mr. Kelly. I hope so. 

The real reason we’re here today — and I appreciate your being 
here. I know you’ve gone through a lot of questioning. And the fact 
that it’s not a political hearing, I understand that. But I’m getting 
a little bit confused, because we keep going back to the political 
side of it. 

To me, this is about trust. And you’re the highest-ranking law 
enforcement official in the country. And when the people lose trust 
in an agency, that’s a very difficult thing to recover, if you can re- 
cover it at all. 

And I go back to a couple of quotes, and these are ones that you 
will recognize. 

One is: “Transparency is the best thing.” That’s from you, by the 
way, in January 2009. “For a long time now, there’s been too much 
secrecy in this city. Let me say it as simply as I can, transparency 
and the rule of law will be the touchstones of this presidency.” 

So we always hear this talk about we’re going to be transparent, 
we’re going to be clear. And then the only thing that I hear that 
I’m clear on is that you were never onboard with any of these 
things. No matter what it was, you know what, I never was in- 
formed. 

And I’m not questioning your management style. I come from an 
industry that if you lose somebody’s confidence, it’s very hard to get 
it back. 

Now we can keep talking about this for a long time. But what 
I’m amazed about is that since 2009, 2010, 2011, there is very little 
information about what happened. When we go back to 2006 in a 
previous administration, we can very clearly demonstrate what 
they did and what they did not do. 

And what I’m really bothered by is a letter from the Department 
of Justice — and we’ve already made reference to it. And this is to 
Senator Grassley. This responds to your letters dated January 27, 
2011, and January 31, 2011, to Acting Director Kenneth Melson of 



200 


the Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF, re- 
garding Project Gunrunner: We appreciate your strong support for 
the Department’s law enforcement. At the outset, the allegation de- 
scribed in your January 27th letter that ATF sanctioned or other- 
wise knowingly allowed the sale of assault weapons to a straw pur- 
chaser who then transported them into Mexico is false. ATF makes 
every effort to interdict weapons that have been purchased ille- 
gally. 

And then on that very same day: Below is a synopsis of Assistant 
Attorney General Lanny Brener’s meetings with the Mexican Attor- 
ney General’s Office, Mexican Federal Police, and the Secretary of 
Foreign Relations. 

Now who else was there? AAG Breuer, Deputy Chief of Mission 
John Feeley from the State Department, DAAG Blanco, Kevin 
Sundwall. All these folks are here, and at the end of it here’s what 
they come up with: 

AAG Breuer told Ventura that there had been a proposed in- 
crease in U.S. sentencings or guidelines for straw purchasers. AAG 
Breuer suggests that a letter from the SRE or PGR in support of 
increased sentencing guidelines for straw purchasers may be use- 
ful. The proposed cross-border operation AAG Breuer suggested al- 
lowing straw purchasers cross into Mexico so SSB can arrest and 
PGR can convict and prosecute these folks. Such coordinated oper- 
ations between the United States and Mexico may send a strong 
message to arms traffickers. 

And now it is preposterous for me to sit here and listen thatyou, 
as the highest law enforcement officer in the country, say, but I 
didn’t know. I didn’t know. See, that’s the problem. I just didn’t 
know. Had I known, I would have changed it. And had I known 
earlier, I wouldn’t have waited until December 2nd of this year to 
pull the message that Breuer had sent. I wouldn’t have allowed the 
Eebruary 4, 2011, letter to be entered into it. 

Don’t you see where the problem is, Mr. Attorney General? It 
isn’t that you say I didn’t know or I wasn’t quite aware of it. The 
problem is the American public relies on you, sir, to follow all those 
guidelines. You are the chief officer. 

And then to come before this body and for us then to be accused 
of some type of a political agenda, this isn’t a Republican issue or 
a Democrat issue. This is a United States of America issue. 

So you have your AAG down in Mexico saying, yeah, it’s a good 
idea. We’re going to keep doing it. And then you have people back 
home saying, you know what, we never did that, and we don’t want 
it to go on. 

Is there any wonder then the American people have lost trust 
and lost faith in this system? Absolutely not. The fact that they 
still hang on to a thread of it goes back to what they know the 
country was to be in the beginning and what it still can be. 

But when you continue to find out that those who are responsible 
don’t do their work and at the end of the day they don’t say, you 
know, it happened on my watch; it’s my fault. What they say is, 
it happened in the previous administration and, doggone it, the 
people who were supposed to brief me never briefed me. 

I can’t believe that the transition from the last administration to 
this administration, there was no briefing? I mean, there may have 



201 


been — the AGs may have turned, but I betcha the same people 
were still on. So to say that we really didn’t know about it to me 
is absolutely preposterous, and that’s something that I can’t accept. 

If you go back to northwest Pennsylvania, you know what integ- 
rity is? It’s saying what you mean and meaning what you say. And 
don’t run around the outsides of it. Go right to the middle and tell 
people what happened. 

You know what I would appreciate you saying? You know what? 
I didn’t have the foggiest idea what was going on. I went after the 
people that handled it and handled it poorly, and they are no 
longer involved. 

Chairman IssA. The gentleman’s time has expired. 

We go to the gentleman from Ohio, Mr. Kucinich, for 5 minutes. 

Mr. Attorney General, we’re going to get you close to 1. We’re 
down to about six people left. 

Go ahead, Mr. Kucinich. 

Mr. Kucinich. Thank you very much, Mr. Chairman, members 
of the committee. 

I want you to know. Attorney General — I’m sorry I’m late to this 
hearing, but my wife and I were at the prayer breakfast this morn- 
ing. And I knew this meeting started at 9, and we were still at the 
prayer breakfast, and we were praying for you. 

Attorney General Holder. I can’t complain about that. 

Mr. Kucinich. Well, let me tell you, based on what I’ve seen, I 
think my prayers have been answered. Because, frankly, I haven’t 
seen anyone make a case about you not performing your duties in 
the way that you should, and I want to go over that right now. 

You and senior Justice Department officials have repeatedly been 
accused of authorizing the gun-walking tactics used in Fast and 
Furious. We already have the record about what my chairman has 
said. He said, “there’s no question that high-ranking officials at 
Justice were briefed and rebriefed, and many of them had direct 
contacts in authorizing the program. They now call it a failed pro- 
gram when in fact the very concept, the very way they wanted it 
to be executed was deadly and dangerous.” 

Now none of the 22 witnesses that this committee has inter- 
viewed supported that claim. And I want to look at, for the mo- 
ment, the Department of Justice organizational chart, which is rel- 
evant here. 

Of course, you know, the DOJ, you are at the top. ATF reports 
to you through the Deputy Attorney General. 

The former head of the ATF — and I emphasize the word 
“former” — Kenneth Melson told us that the controversial tactics 
were never raised to my level. He said he was not aware of gun- 
walking and never brought it to the attention of senior DOJ offi- 
cials. 

Now Mr. Melson’s second in command, William Hoover, also told 
the committee staff he did not know of the gun-walking tactics in 
Fast and Furious. He said it was his “firm belief that the strategic 
and tactical decisions made in this decision were born and raised 
in Phoenix.” 

Now, Mr. Attorney General, can you corroborate their statements 
to the committee? And did the head of ATF or his deputy ever 
warn you that gun-walking was occurring? 



202 


Attorney General Holder. No, I never got that from either Mr. 
Melson or from Mr. Hoover. 

Mr. Kucinich. Well, I want to go back over this chart again, be- 
cause it’s really important for Members to have an understanding 
here. 

You’ve got the U.S. attorney in Arizona, the ATF — the ATF, Mr. 
Hoover, Mr. Melson. ATF didn’t report anything to the Deputy At- 
torney General. The U.S. attorney for the district of Arizona didn’t 
put any information through to the Deputy Attorney General. So 
what I want to know is, all of this talk about resignation, we’re 
really devaluing the whole concept of asking a top-level official to 
resign when you haven’t reached the level of proof that something 
was right on his desk. No one’s proved that at all. But we keep 
talking about resignation. 

If we cheapen this whole idea of just — you don’t like someone, 
you ask them to resign. You don’t like an administration, you ask 
people to quit. You cheapen that idea. It makes this whole com- 
mittee process less significant. 

And I want this committee to be important. I chose to be on this 
committee when I first came to Congress because government over- 
sight is a very important function. I want to support my chair’s call 
for this hearing, even though it’s the sixth hearing. You must feel 
like Tom Hanks in the movie Groundhog Day because we keep 
coming to the same point. But you know what? You have an obliga- 
tion to come to us, nevertheless. 

So look at that chart. Hold that up again, please. All this infor- 
mation, all these assertions, they never got to the Attorney Gen- 
eral. Now why? Whether you like him or not, you’ve got to be able 
to make the case, and the case has not been made here that the 
Attorney General, Eric Holder, was in any way derelict in his du- 
ties. And those on the other side of the aisle know me well enough 
that if I thought that he was I wouldn’t hesitate to say it. 

So I think that we’ve got to be very careful here with people’s 
reputations, because reputations take a lifetime to build. They can’t 
just be trashed in a minute without facts. After a while, this is 
starting to sound like Alice in Wonderland or Through the Looking 
Glass, where you’ve got the queen saying, sentence first, verdict 
afterwards. 

The sentence is resignation, resign. But we haven’t made a fact 
pattern that would suggest that we should have that conclusion 
raised to the level of the President having to take the action be- 
cause you serve at the pleasure of the President. 

So I just want to say, whatever disagreements that we may have 
on certain policies, I don’t see anything that’s been produced here 
today that should cause you to have to stop serving the people of 
the United States of America. And I just want that on the record, 
haven’t seen the facts that would show otherwise. 

Thank you. 

Chairman ISSA. I thank the gentleman. 

We now go to the gentleman from Idaho, Mr. Labrador, for 5 
minutes. 

Mr. Labrador. Mr. Chairman, thank you. 



203 


I’m glad that the minority has made a point that I’ve heen trying 
to make for a long time: Government is too big and has too many 
layers of bureaucracy. 

But I’m one of the first people who asked for your resignation, 
and I did it after thinking about it for a long time. And in my 
statement when I asked for your resignation I said that, in your 
testimony before Congress, you either lied or you were grossly in- 
competent in your actions when it came to finding out about Fast 
and Furious and your handling of this matter. 

The reason we keep bringing you back to Congress is because we 
want to know what you knew and when you knew it. It’s a simple 
question. But the problem is that, even though you have testified 
six times up here on this matter on differing occasions, your story 
continues to evolve and continues to change. In fact, today your 
story changed a little bit. 

So let’s talk about the facts. Everybody wants the facts. So let’s 
talk about the facts here. 

On May 2011, you said in the Senate Judiciary that you first 
heard about Fast and Furious a few weeks ago. In November 2011, 
you said that a few weeks was inaccurate and that you should have 
said a couple of months. Emails released on January 28th show 
that you were informed by your deputy chief of staff of Agent Ter- 
ry’s death; and you just testified today that, yes, that is correct, on 
December 15, 2011. 

And this is what I am trying to get to right here. On that same 
day — and it’s already been shown — your deputy chief of staff 
learned that the guns used to kill Agent Terry were from East and 
Eurious. So what you want us to believe is that you were told about 
the death of Agent Terry but you chose not to ask any followup 
questions on that same day about what caused the death of Agent 
Terry and that, in fact, you didn’t learn about the connection be- 
tween the death of Agent Terry and East and Eurious until a cou- 
ple of months later. 

That’s what you want us to believe. And that’s fine. That may 
be the truth. But you can continue to come to Congress — that may 
be the truth. That’s fine. I don’t have a problem with it. You con- 
tinue to come to Congress unprepared. Don’t you agree that this is 
a pattern that you have of dealing with difficult questions and em- 
barrassing issues in your office, continuing to come to Congress un- 
prepared? 

Attorney General Holder. I think it’s very interesting what you 
just said: That may be the truth. What I said may be the truth. 

Mr. Labrador. Yeah, it may be the truth. I’m not disputing it. 
I’m saying, but you continue to come to Congress unprepared. 
Wouldn’t you admit that you continue to come to Congress unpre- 
pared when you have to testify? Where you have to change your 
statements, you have to withdraw memos from your office, isn’t 
that a fact? 

Attorney General Holder. No. 

Mr. Labrador. Okay. Let’s look at that. Let’s look at the facts. 
If we could go to the slides, please. 

When you came to Congress on Eebruary 14, 2001, you were 
being asked about Mr. Mark Rich’s pardon. It says, “Mr. Rich’s 



204 


name was unfamiliar to me. I had gained only a passing familiarity 
with the underlying facts of the Rich case.” 

Go to the next slide. “I did not acquaint myself with his record.” 

Let’s go to the next slide. “I never actually saw that letter.” 

There’s a pattern here that we continue to hear in your testi- 
mony. 

Let’s go to the next slide. “You’re right.” 

Mr. Cummings. Mr. Chairman, you said at the beginning that 
this would he limited to Fast and Furious; and here we are — I’m 
seeing something up there from 2001. 

Mr. Labrador. I’m just showing a pattern of behavior. 

Mr. Cummings. We’ve honored that. And I have been very strict 
with my people on this side to stay within the parameters that the 
chairman set. And, as a matter of fact, I thought we’ve done a pret- 
ty good job so far. 

Chairman ISSA. The gentleman will suspend. 

I’m going to limit what he can do to anything that he wants to 
say related to management style. And the Attorney General does 
not have to answer any questions. I don’t actually see a question 
here. 

I have heard time and time again people talking about gun con- 
trol and the need for it and a number of other items. Expressing 
an opinion within the 5 minutes by a Member of Congress is some- 
thing I have limited authority. The gentleman has only 5 minutes. 
I do not expect the Attorney General to answer, although in de- 
fending himself in this case he may choose to. And I would caution 
the gentleman from Idaho to get to the management question 
quickly because this is about Fast and Furious. 

Mr. Cummings. Thank you, Mr. Chairman. 

Mr. Labrador. Okay. 

Next slide. “You’re right. I didn’t have the ability to look at all 
the materials.” 

Next slide, please. “I have not had a chance — ” on May 13, 2010, 
when you were testifying about Fast and Furious, “I’ve not had a 
chance to. I have glanced at it. I have not read it.” 

Next slide, please. “I have no recollection of knowing about Fast 
and Furious” — on October 7, 2011. 

Next slide, please. On October 7, 2011: “On a weekly basis, my 
office typically receives over 100 pages and weekly reports that are 
provided.” 

Next slide, please. “I certainly never knew about the tactics em- 
ployed in the operation.” 

Next slide, please — and this is on February 14, 2001: “And I 
think the one thing that would have changed this whole thing is 
if I had said to the person on my staff, what’s the status of the 
Rich matter?” 

I believe that’s what would have changed, and we would have 
avoided the six hearings that we have had about this matter, is if 
you would have just asked a simple question of your staff before 
you came to testify in Congress: What did we know about Fast and 
Furious, and when did we know it? 

You failed to do that. You failed to do that under the Mark Rich 
investigation, and you failed to do it on this case, and this is why 
we continue to have these hearings. 



205 


Mr. Attorney General, I believe the American people deserve bet- 
ter. I believe that the American people deserve to have an Attorney 
General that they can trust. And for that reason, I have asked for 
your resignation. And I believe that, because you have been grossly 
incompetent in the way that you have prepared before coming to 
Congress, I think you should resign. 

Thank you very much. 

Ms. Norton. Mr. Chairman, I just want to note for the record, 
this gentleman could have had a whole pattern that begins with 
Fast and Furious, but he insisted 

Chairman IssA. Does the gentlelady state a point of order? 

Ms. Norton. It was a violation of the rules you yourself, Mr. 
Chairman, set 

Chairman IssA. Madam Norton, the rules of the House severely 
limit my ability to impede your 5 minutes of opinion or his 5 min- 
utes of opinion. I have cautioned Members. I have made it very 
clear the witness will not be expected to answer any questions that 
are not on the narrow subject of Fast and Furious. 

Staff will show you the rules that limit how much I can stop 

Ms. Norton. Mr. Chairman, if I may say, it seems to me that 
that interpretation of the rule was clearly not before us before. And 
I am going to have to ask, sure, if it’s the right — it has been my 
view all along that a Member may ask about what time it is on 
the Moon in her 5 minutes. I never had a chairman before try to 
keep me from using my First Amendment rights. But since that 
had been your rule and this isn’t the first time you have invoked 
it, I tried to honor it. 

Chairman IsSA. I thank the gentlelady for her comment. 

I have the ability to limit the scope of a hearing. I’ve tried to pro- 
tect the Attorney General from answering questions which were 
not within the scope of his preparation. I respect the gentlelady’s 
right to use her 5 minutes to state opinions, and I have never 
stopped somebody from it, although I have cautioned. 

It is the intent of this committee to keep this from being any- 
thing other than a legitimate investigation as to Fast and Furious 
and conditions that occurred around the investigation of a number 
of committees. So I appreciate the gentlelady’s comment and would 
recognize for 10 seconds the gentleman from Ohio. 

Mr. Kucinich. I just want to correct the record. It was sug- 
gesting that it was Bill Murray, not Tom Hanks, in Groundhog 
Day. So I just want to make sure that, you know, I thought that 
you may have felt like Bill Murray in Groundhog Day, not Tom 
Hanks. 

Chairman IsSA. I thank the gentleman. And, for the record, it 
was 38 days in a row in which that repeated itself for Groundhog 
Day. 

Attorney General Holder. Mr. Chairman, if I could just say one 
thing in response to Mr. Labrador. 

Chairman IssA. Of course. 

Attorney General Holder. That was among the worst things I 
think I’ve ever seen in Congress. You took a whole series of state- 
ments out of context, with no context 

Mr. Labrador. With all due respect, the worst thing I’ve ever 
seen 



206 


Chairman IssA. The gentleman’s time has expired. 

Attorney General Holder. And, you know, the Mark Rich thing 
was considered in my confirmation. We talked about it then. There 
are a whole bunch of things that I could say about what you just 
did. And maybe this is the way you do things in Idaho — or wher- 
ever you are from. 

But understand something. I’m proud of the work I’ve done as 
Attorney General of the United States. And looked at fairly I think 
that I’ve done a pretty good job. Have I been perfect? No. Have I 
made mistakes? Yes. Do I treat the members of this committee 
with respect? I always hope that I do. 

And what you have just done is, if nothing else, disrespectful. 
And if you don’t like me, that’s one thing. But you should respect 
the fact that I hold an office that is deserving of respect. 

And, you know, maybe you are new to this committee. I don’t 
know. I don’t know how long you have been here. But my hope 
would be that, you know, we can get beyond that kind of inter- 
action, that kind of treatment of a witness, whether it’s me or 
somebody else. Because I think in some ways what you did was 
fundamentally unfair, just not right. 

Chairman IsSA. I thank the gentleman. 

We now go to the senior member of the committee from Pennsyl- 
vania, Mr. Platts. 

Mr. Platts. Thank you, Mr. Chairman. I certainly appreciate 
your efforts on this important issue. 

Mr. Attorney General, I guess first I’d just comment, most of my 
line of questions or questions have been addressed, asked, and an- 
swered, and I am not going to repeat what others have already ad- 
dressed. 

To the last exchanges, I guess I have two comments: 

For the most part, I agree with what you just said and consider 
the gentleman from Idaho a friend and don’t share the approach 
in this instance that he took. And I think your points of a reminder 
of civility are important. 

Along with that, I also share the frustration I think that’s com- 
ing through in his presentation or others on both sides of the aisle 
that what this is all about is a courageous American who died in 
the line of service to this country and that the actions of others in 
service to this country may have played a role because of mis- 
management of a program or outrageous conduct relating to gun 
trafficking and that we stay focused on that. 

The frustration is that, apparently, the Inspector General has 
thousands of pages of documents that this committee, in trying to 
do legitimate oversight, has not been privy to; and the sooner this 
committee on both sides of the aisle have access to the same infor- 
mation, the sooner the efforts of this committee can be achieved in 
a nonpartisan, just good government fashion. 

So I think we all need to keep the focus. This is about how do 
we make sure that the death of a servant of this Nation never is 
repeated in the circumstances that we see in here. 

So with my questions being asked and answered. I’m going to 
yield. I know the gentleman from South Carolina has something he 
didn’t get to finish up. So I am going to yield him the balance of 
my time. 



207 


Mr. Gowdy. I thank the gentleman from Pennsylvania. 

I just want to circle back, Mr. Attorney General, with respect to 
the October 12, 2010, email, Mr. Weinstein and Mr. Trusty. And 
I am happy to provide you a copy if you do not have one. 

You would agree with me that Fast and Furious is mentioned 
specifically in that email exchange? 

Could I ask that the clock be tolled, Mr. Chairman, while 

Chairman IssA. We will suspend, and we’ll give him back the 
document again. 

Attorney General Holder. I have it in front of me. This is Octo- 
ber 14th, October 17th, and October 18th. 

Mr. Gowdy. That’s correct. If you need time to familiarize your- 
self with it, take all the time you want. 

Attorney General Holder. That’s fine. No, I’m okay. 

Mr. Gowdy. Would you agree with me that Fast and Furious is 
mentioned specifically in that email exchange? 

Attorney General Holder. Yeah. I guess this is the October 17th 
from Jason Weinstein to James Trusty. 

Mr. Gowdy. And both of those gentlemen are Main Justice em- 
ployees, correct? 

Attorney General Holder. That’s right. 

Mr. Gowdy. And you would agree with me that gun-walking is 
mentioned specifically, correct? 

Attorney General Holder. Yes. In the second line. Number of 
guns that have walked. 

Mr. Gowdy. Yes, sir. And it is actually mentioned in both the ex- 
changes, guns that have walked and then somebody says gun-walk- 
ing. So that’s two references to it. 

Now can you find the phrase “Wide Receiver” anywhere in that 
email? 

Attorney General Holder. I can’t see this very well, but I’m just 
going to assume that, given the tenor of your question, that the 
term Wide Receiver does not appear in here. But Mr. Weinstein 
testified that when he was talking about a tricky case he was refer- 
ring to Wide Receiver in the Sunday, October 17th, email. 

Mr. Gowdy. And I can’t speak to that, Mr. Attorney General. My 
point is this: Leading up to February 4th, a letter was being draft- 
ed — and I’m much more concerned with the name at the top of that 
letter than I am the name at the bottom. The name Department 
of Justice means something to me. The name at the bottom of it, 
not so much. 

While that letter was being drafted, there are people in Main 
Justice who knew the body of that letter was incorrect, factually in- 
correct. And while that letter was being drafted, the criminal chief 
Lanny Breuer was in Mexico talking about gun-walking. 

Do you know whether or not he alerted our Mexican counterparts 
that Fast and Furious was something that they needed to be pre- 
pared to deal with because of the number of weapons? Did he at 
least mention to them, be alerted; a lot of weapons went down 
there; a lot of your civilians are going to be killed? 

Attorney General Holder. Well, first I would say yes, there were 
people at main Justice who did have that knowledge of Wide Re- 
ceiver and who admitted they did not make the connection between 
Wide Receiver and Fast and Furious, and that should have hap- 



208 


pened, and that could changed the February 4th letter. Lanny 
Brener was not down there talking about gun walking as we have 
used that term during the course of these last 4 hours or so when 
he was dealing with the people in Mexico. 

And I don’t remember the third question 

Mr. Gowdy. Well, I actually don’t like interrupting witnesses, 
but I am almost out of time. I am going to read a summary. And 
this isn’t my summary. This is from a DOJ attache named Tony 
Garcia. The summary reads, “Mr. Brener suggested allowing straw 
purchasers crossing into Mexico so Mexican police can arrest and 
Mexican prosecutors can prosecute and convict.” Mr. Garcia then 
wrote a summary saying what a horrible idea that was for the very 
reasons we have been talking about for the last hours, that people 
were going to die and weapons were going to get away from us. 

So my time is out. I just want to ask one more question. 

Chairman ISSA. Very, very briefly. 

Mr. Gowdy. Very briefly. Has there been discussion at main Jus- 
tice of either a grant of immunity to Mr. Cunningham so we can 
know what it is that he feels the need to invoke his Fifth Amend- 
ment right to not say? Have you discussed granting him immunity, 
and has there been a conversation by calling for a special pros- 
ecutor who may want to issue that grant of immunity? 

Attorney General Holder. We have not discussed immunity or 
a special prosecutor. I think that would be for you-all to ask us, if 
that is something you want to have considered. I will say I don’t 
know exactly why he invoked his Fifth Amendment privilege, but 
I can say that in the preparation of that February 4th letter that 
he was involved in, I don’t have any basis to believe that he know- 
ingly provided with us any false information. But, again, I don’t 
know why he invoked his privilege. He has a lawyer from a very 
good law firm here in D.C., and I am not sure why he did that. 

Chairman IssA. The gentleman’s time has expired. 

Mr. Cummings. Mr. Chairman, just 5 seconds. I just want to say 
to Mr. Gowdy, we have answered all your questions that you asked 
about Weinstein in our report, and it comes from documents that 
were during the testimony and before our staffs. 

Chairman IsSA. I thank the gentleman. We now go to the gen- 
tleman from Oklahoma, Mr. Lankford. 

Mr. Lankford. Mr. Attorney General, thank you for being here, 
your testimony. It is a long day and you dealt with this topic a lot. 
I know you also did not want to see the death of Brian Terry. None 
of us did. This was a horrible incident that we are dealing with a 
lot of consequences of over time because we want to make sure it 
never happens again. We have heard loud and clear from you, you 
want to make sure this never happens again, and I appreciate that. 

What I want to do is talk briefly about ATF and the structure 
there. Obviously this was an acting director. You have to have con- 
cerns, have extra there, you have extra attention to it in the man- 
agement based on an acting director and the transitions and all 
that has happened with ATF on it. 

The structure with the FBI, and if they are going to go for an 
undercover operation, they have a field office proposal that goes 
through the supervisor in charge, it goes through headquarters, it 
goes through legal. Then legal has to determine is this entrapment. 



209 


is this fully within the bounds of that. A U.S. attorney may get in- 
volved in it at some point, and then it goes up to headquarters if 
it involves a certain amount of money and a length of time and 
such. So it has a very lengthy process getting all the way up to the 
Department of Justice on that. 

Is that a similar process to what ATF also does to be able to ap- 
prove an operation like this undercover? 

Attorney General Holder. I am not sure that it is as robust as 
what you have just described with regard to the FBI, but it is 
certainly 

Mr. Lankford. But that is consistent with the FBI process, is 
that correct? 

Attorney General Holder. I am sorry? 

Mr. Lankford. Is that the right process for FBI that they go 
through? 

Attorney General Holder. I think the FBI process is a good one, 
and I think that what we need to do is have, not only with regard 
to ATF but all the other investigative agencies within the Justice 
Department, make sure that we have similar procedures in place. 
That is one of the things that I have talked about with Todd Jones, 
the Acting Director who is in the process of making changes at 
ATF. 

Mr. Lankford. Because that is the concern obviously, to put in 
a system and structure to make sure this never, ever happens 
again. It is one thing to talk about it after the fact. It is another 
thing to try to fix it so it doesn’t become such a bureaucratic maze 
that nothing happens, but it also makes sure there are some checks 
and balances, that we are not doing entrapment, that someone else 
is checking it, that it is getting up to your office. If it wasn’t getting 
to your office or something like this before, let’s try to make sure 
it does in the future day get up to DOJ. So that is something in 
process. 

What is the timeframe on that for a decision and a shift on that 
that is occurring? 

Attorney General Holder. You know, I mean, I would hope this 
is something we can do over a matter of a relatively short number 
of months. I think to do this right, we need to have buy-in from 
people who are at ATF headquarters, people who are in the field, 
so they have an ability to express their views and so that they will 
accept — these are things that are probably going to be changes in 
the way in which they have operated. So I think we are talking 
about a matter of months before we have those kinds of things in 
place. 

Again, Todd has really made significant changes. He is working 
real hard at this. But I think the concern that you have expressed 
is one that I agree with. We should make sure that we have proc- 
esses in place to minimize the possibility that what we are talking 
about today, and legitimately talking about today, never happens 
again. 

Mr. Lankford. Right. The last thing I want to say to the Terry 
family at some point is this occurred and nothing has happened to 
make sure it never occurs again, that there is some way to be able 
to say this is never going to occur again as long as it is on any of 
our watch on it. 



210 


Let me make a quick side statement and then I am going to yield 
back to the chairman as well. This is not something that I expect 
you to answer on it. It is a comment that I want to be able to 
make. It is off topic on it, so I am going to tell you that. 

Yesterday this committee had a hearing dealing with the con- 
stitutional issues and the repercussions of the President’s appoint- 
ments to the NLRB and CFPB in January. Obviously your Depart- 
ment is very involved in that in the constitutional statement. 

In 2010, Deputy Solicitor General Neal Katyal was before the Su- 
preme Court and Chief Justice Roberts asked him specifically, can 
the NLRB, a question, be resolved with a recess appointment? Neal 
Katyal at that time 

Ms. Norton. Mr. Chairman, it looks like there is another viola- 
tion of your rule coming up. 

Chairman IssA. The gentlelady is out of order. 

Mr. Lankford. I already prefaced this by saying I do not antici- 
pate this — I am making a statement. I do not expect the Attorney 
General to respond to this. 

So Neal Katyal made this statement to the Supreme Court say- 
ing that a recess appointment could not be done if it is less than 
3 days. So there was an opinion by him on that before the Supreme 
Court dealing specifically with the NLRB. Two years later. Justice 
came back out and came out with a statement saying no, that is 
legal, so there was a transition. 

Mr. Chairman, what I would hope for at some point is to be able 
to have some conversation to say what changed between 2010 and 
2012 in Justice, that at one point they considered it not legal and 
2 years later considered it legal and appropriate at that point. So 
obviously I am not expecting — that is not in your preparation on 
that, but that is something we just dealt with as a committee yes- 
terday, and I would hope at some future day we would deal with. 

Chairman IsSA. I thank the gentleman. There is no question 
there. 

Attorney General Holder. If I could just 

Chairman IsSA. Are you yielding to me? 

Mr. Lankford. I do yield back. 

Chairman IsSA. I will give you time for a quick close. 

The evidence that you have given us through discovery that on 
February 4th, Lanny Breuer was, in fact, talking about a program 
that included guns passing over the border in the hopes that they 
would be intercepted, well, in fact, on March 10th in the Cole email 
there is a statement I will read verbatim here. “As I said on the 
call, to avoid any potential confusions I want to reiterate the De- 
partment’s policy as though existing. We should not design or con- 
duct undercover operations which include guns crossing the border. 
If we have knowledge that guns are about to cross the border, we 
must take immediate action to stop firearms from crossing the bor- 
der, even if that permanently terminates or otherwise jeopardizes 
an investigation.” That is a complete para^aph. 

Can you, in fact, answer for this committee how you have coun- 
seled or changed Lanny Breuer from a man who flew to Mexico and 
said I want to have guns crossing the border to this, which says 
there is a policy and it is wrong, and we have only got a month 
in between them? 



211 


Attorney General Holder. Well, clearly what was proposed in, I 
guess, February by Lanny Brewer was in contravention of the pol- 
icy that I had the Deputy Attorney General make clear to every- 
body at main Justice and to the field. And to the extent that there 
is a tension, the policy that Mr. Cole has laid out is the policy of 
the Justice Department and is the thing that I support. 

Chairman ISSA. I want to thank you. I am not going to ask any 
more questions. You have been very generous with your time. 

I want to reiterate just one thing. We can’t undo everything that 
was said here. The effort was made for this to be narrowly about 
Fast and Furious. I believe that two other committees. Senate Ju- 
diciary, House Judiciary, had each one time in which the primary 
reason for you being called was not normal oversight, but in fact, 
related to Fast and Furious and the letter that followed. We believe 
we have had one crack at it also, and we appreciate your coming 
three times to three separate committees. And that we appreciate. 

In closing, I do believe there are people at Main Justice who ulti- 
mately do need to go. If you are a political appointee, you should 
not be reassigned if you are in some way culpable in something like 
Fast and Furious. I have never accused you of having personal 
knowledge. This committee has never accused you of having per- 
sonal knowledge. One of our Members went on quite a bit about 
the alternative of either you knew or should have known. I share 
that, that, in fact. Justice has to have a bubble-up system that 
holds specific people accountable for specific levels of action. 

This committee would hope, under our reorganization and orga- 
nizational side, not our investigation side, that we can continue 
working with Justice so that we can have a comfort level, along 
with the Judiciary Committees, that those systems are put into 
place so that in the future, if something like this happens, we know 
that, for example, a person signing a wiretap would also be a per- 
son who would understand the level of the operation being de- 
scribed in great detail, and you described it as this thick a docu- 
ment, and it often is. 

So I appreciate what you came here to do. This committee is ob- 
viously widely divided on details of Fast and Furious and the letter 
that followed. 

I said I would let you have the last word. So, Mr. Attorney Gen- 
eral, you have the last word. 

Attorney General Holder. Well, Mr. Chairman, I would just 
say 

Chairman IssA. Would the gentleman suspend. 

Mr. Cummings. Just 30 seconds. 

Chairman IsSA. Thirty seconds of, course. 

Mr. Cummings. I just wanted to go back very quickly, Mr. Chair- 
man, to something that Mr. Gowdy was asking about with regard 
to Mr. Weinstein, and just wanted to make it part of the record, 
this transcript page 121, where he says, “Okay, first of all, let me 
clear up the confusion that you noted about the pronouns. When 
I say it is a tricky case given the number of guns that have walked, 
I am talking exclusively about Wide Receiver.” I just wanted to say 
that. 

Thank you, Mr. Attorney General. 



212 


Chairman ISSA. Thank you. As we said, you have the last word, 
Mr. Attorney General. 

Attorney General Holder. Well 

Chairman IsSA. Briefly. 

Attorney General Holder. As I said, you and I talked before the 
hearing began, and I just want to say that you, the ranking mem- 
ber, the members of this committee have treated me fairly, with 
one exception, one glaring exception, and I have talked about that. 
The questions you have asked have been tough, they have been 
fair, and I share what was indicated, a desire to make sure that 
we have in place mechanisms so that the thing that brings us here 
today is something we will never have to discuss again. 

I think there are a variety of things that we can work on as peo- 
ple who are dedicated to the safety of the American people, and I 
look forward to working with the members of this committee across 
party lines to try to reach those kinds of — successfully reach those 
kinds of solutions. 

Chairman IssA. I thank you. General Holder. We stand ad- 
journed. 

[Whereupon, at 1:20 p.m., the committee was adjourned.] 

[The prepared statements of Hon. Dan Burton and Hon. Paul A. 
Gosar follow:] 



213 


Opening Statement for Rep. Dan Burton 

"Fast and Furious: Management Failures at the Department of Justice" 
Thursday, February 2, 2012 


Thank you, .Mr. Chairman for this opportunity to talk about the significant management failures 
in the .lustice Department surrounding Operation Fast and Furious. A.s you may recall, I chaired this 
Committee during the investigation of the pardon Marc Rich. The common thread between the actions 
of Attorney General Holder at that time and now is his forgetfulness and lack a dearth of managerial 
controls. 

The office of Attorney General is one of the most important positions in our government. The 
actions of .Mr. Holder then and now reveal a pattern of confusion, mismanagement, and a total 
disrespect of Congress' oversight authorities. Lives were lost and no one is being held accountable at 
the highest levels nearly two years later. As Harry Truman once said, the buck stops here. Mr. Holder 
seems to think the buck stops anywhere but with him. 

in addition to betraying the trust of the American people - e.specially those engulfed by the 
violence along our southwestern border - Operation Fast and Furious has also damaged US-Mexican 
relations, it is unthinkable that the United States sponsored a project that knowingly allow'ed 
thousands of weapons to enter Mexico w'ithout its government's knowiedge or consent; especially as 
we need Mexico's cooperation to defeat the cartels terrorizing .Mexico and our southw'cstern 
communities. Operation Fast and Furious has proved to be one of the most serious errors in judgment 
carried out in recent history by a Federal agency, and to date no one at the highest levels has been held 
responsible. 

Mr. Chairman, I applaud your determination to uncover the whole truth behind Operation Fast 
and Furious, Based upon the DOJ's cooperation on this matter to date, and my own experience 
investigating FBI corruption in Boston back in 2003, Attorney General Holder has an established 
pattern of putting up every obstacle, no matter how flimsy, to thwart ongoing Congressional 
investigations. Unfortunately, it has come as no surprise to me that the Department of Justice has 
delayed Committee document requests by refusing to cooperate with Committee subpoenas; and has 
produced scores of blacked-out pages. According lo the Department's own Inspector General, that 
office has reviewed 80,000 pages of documents and more than 100,000 emails relating to its own Fast 
and Furious investigation. In comparison, Congress has been given only between 5,000 - 6,400 pages. 
The Committee must be vigilant and Mr. Chairman, you have been, I commend you and your staff for 
taking seriously this Committee's oversight responsibilities. 

No matter what the case is, .Attorney General Holder should be held responsible for overseeing 
a Department that executed Fast and Furious. The American people and the innocent Mexican citizens 
w'hose lives have been forever damaged by Operation Fast and Furious deserve answ'ers and they 
deserve accountability from our Federal officials. 

I look forward to Mr. Holder's testimony and his responses to the questions raised here today. 
.Again, thank you Mr. Chairman. 


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214 


Congressman Paul Gosar 
Opening Statement 

"Fast and Furious: Management Failures at the Department of Justice" 
February 2"*', 2012 


As the only member of the Oversight Committee from Arizona, I cannot state enough how crucial 
today's hearing is to give Arizonans the answers they truly deserve about Operation Fast and Furious. 

My constituents brought this scandal to my attention very early on in my first term - and our 
committee, under the leadership of Chairman Darrell Issa, as well as Senator Chuck Grassley in the 
Senate, has been working tirelessly to interview witnesses and investigate who authorized and 
supervised Operation Fast and Furious. It is infuriating that a year later, we still cannot answer that 
simple question. 

We can start with what we do know. Our federal government, under the auspices of the Department of 
Justice, enacted a program to walk guns into Mexico but failed to use any standard tracking methods. 
The result was thousands of guns ending up in the hands of hardened Mexican criminals and drug 
cartels, hundreds of deaths in Mexico, and several deaths here in the United States. We have seen 
statements from inside the DOJ, and its fellow travelers in Congress, almost hoping for a tragedy in 
order to use such a tragedy as a pretext for even more gun control laws. When the Second Amendment 
is under attack by the very Agency sworn to uphold it, we must all remain vigilant against the onslaught 
upon our freedoms and constitutional rights.' 

I have said many times that the Constitution is not a menu from which the President, the Attorney 
General, or even a member of Congress, can pick and choose what rights they like and will enforce, and 
what rights they want to violate. The Second Amendment right to own and keep firearms is as 
important to the freedom of this country as the First Amendment right to free speech or free worship. 

It is as important as the right against unlawful search and seizure, or the right to an attorney before 
facing imprisonment. We all took oaths to uphold and defend the Constitution. We did not swear to 
uphold only those parts we really like. 

It is a profound shame that this committee is today holding its third hearing with respect to Fast and 
Furious and has yet to discover who authorized this program and who must be held accountable for it. 
Frankly, this sad state of affairs is a deadly reflection of the bigger picture, of an Administration gone 
wild - an Administration with no regard for the Constitution. Everywhere we look, from individual 
insurance mandates, engaging in war without Congressional approval, to illegal recess appointments, to 
Cabinet members who flout Congressional subpoenas - this President and his appointees believe that 
the Constitution simply doesn't apply to them. Let me be clear. They are wrong. They do not deserve 
to hold high office with this clear contempt for our Rule of Law. it is our duty as Congressional oversight 
watchdogs to root out these egregious instances of executive abuse and hold the offenders accountable. 
And I intend to do everything in my power to make that happen today. 



215 


i also want to address the report that the minority released in the days preceding this hearing. I find the 
report laughable. The report is notable as a poor whitewash and transparent partisan cover-up. The 
"nothin’ to see here folks, move along now" attitude displayed in the Minority Report is a public 
disservice. The Minority's suggestion that the idea that rogue ATF agents were wholly responsible for 
Operation Fast and Furious and that the Department of Justice has its hands one hundred percent clean 
in the matter is simply frivolous. The facts belie that assertion. Actions speak louder than words, and 
this committee has had ATF agents willingly come forward and share their story, and also be open to 
questions and answer them honestly. This Department of Justice has stonewalled our investigation, 
hiding behind an Inspector General's report. We can all respect the work of Inspectors Genera! but let's 
not mince words here: the Department of Justice is choosing not to cooperate with Congress, i fully 
support my Chairman in the actions he chooses to take to address this non cooperation, on behalf of our 
Committee and our Congress, which is a fully co equal branch of government. 

Mr. Holder cannot continue to hide from the public and avoid addressing this matter. The people of 
Arizona cannot hide from the consequences of Fast and Furious. Over a thousand guns, placed into the 
hands of narco-terrorists and criminals, still remain at large. The guns we have found are usually 
accompanied by dead bodies of innocent victims or industrial size toads of illicit drugs. It is sickening that 
our government shares any portion of the blame for aiding these international criminals -• and just as 
sickening that those appointed to positions of power see themselves as above the law and not 
accountable for their part in it. Americans have record low confidence in their government and in their 
public servants. With politically motivated stonewalling and covering up for political appointees, as the 
Department of Justice has done, it's not hard to see why. We have a mission here to restore that trust 
and it requires not letting up until we have ail the facts. 


O